The Scope of Hybrid Public Authorities within the HRA 1998

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1 [2004] JR 43 The Scope of Hybrid Public Authorities within the HRA 1998 Vikram Sachdeva* Supervisor in Administrative and Public Law, Trinity Hall, Cambridge; and Barrister, 39 Essex Street 1. The width of the concept of public authority under the Human Rights Act 1998 (HRA 1998) is of great importance, determining the ambit of those bodies which must not act incompatibly with rights under the European Convention on Human Rights. 2. The meaning of public authority within the Act is not exhaustively defined. Section 6 provides: (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.... (3) In this section public authority includes... (b) any person certain of whose functions are functions of a public nature (5) 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. 3. Two recent cases have addressed the question of the proper ambit of core public authorities under s. 6(1) and hybrid public authorities under s. 6(3) of the Act. Aston Cantlow Parochial Church Council v Wallbank 4. The dispute concerned the liability at common law of lay rectors, being the freehold owners of former rectorial land, to repair the chancel of their parish church. 1 In 1994 the claimant ( the PCC ) served on Mrs Wallbank a notice under s. 2(1) of the Chancel Repairs Act 1932 calling on her to repair the chancel. She disputed liability, so the PCC brought proceedings against the Wallbanks 2 under s. 2(2) of that Act. 5. A preliminary issue was taken in relation to whether the proceedings brought by the PCC were unlawful under s. 6(1) of the HRA 1998 as an act by a public authority which is incompatible with a Convention right. 3 The defendants primary argument was that the liability to defray the cost of chancel repairs was a form of taxation contrary to Art. 1 of the First Protocol to the Convention the right to peaceful enjoyment of possessions. 4 *I am indebted to Robert Jay QC and Richard Clayton QC for their suggestions relating to this article. 1 The church also had another claim to fame: it was the church in which William Shakespeare s parents, Mary Arden and John Shakespeare, were married. 2 Mr Wallbank was joined to proceedings when it was discovered that the freehold title of the relevant land (Glebe Farm) had been conveyed into his name jointly with that of his wife. 3 The argument that that required giving retrospective effect to the HRA 1998 was conceded by the PCC. 4 It was also argued that there was a breach of Art. 14, taken with Art. 1.

2 44 The Scope of Hybrid Public Authorities within the HRA 1998 [2004] JR 6. At first instance, Ferris J gave judgment for the PCC. 5 The Court of Appeal 6 allowed the appeal, Sir Andrew Morritt VC first stating (at para. [34]) that: the decided cases on the amenability of bodies to judicial review, while plainly relevant, will not necessarily be determinative of a body s membership either of the principal or of the hybrid class of public authority before rejecting the claim that the PCC would not qualify as a public authority under the authorities concerned with amenability to review: the authorities as they now stand draw at least a conceptual line between functions of public governance and functions of mutual governance... [b]ut... there is no surviving element of mutuality or of mutual governance as between the impropriator and the church in the lay rector s modern liability for chancel repairs, and no question but that the recovery of the cost of such repairs... is a function of the PCC. 7. The Court of Appeal (at para. [35]) found that the PCC was both a core and a hybrid/functional public authority: In our judgment it is inescapable, in these circumstances, that a PCC is a public authority. It is an authority in the sense that it possesses powers which private individuals do not possess to determine how others should act. Thus, in particular, its notice to repair has statutory force. It is public in the sense that it is created and empowered by law; that it forms part of the church by law established; and that its functions include the enforcement through the courts of a common law liability to maintain its chancels resting upon persons who need not be members of the church. If this were to be incorrect, the PCC would nevertheless, and for the same reasons, be a legal person certain of whose functions, chancel repairs among them, are functions of a public nature. 8. However, on appeal the House of Lords 7 held that the PCC was neither a core nor a hybrid public authority. 9. Its decision that the PCC was not a core public authority was unanimous, and rested on the conclusion that the PCC was not a governmental organisation. 8 An influential factor in its conclusion was that the contrary decision would prevent the PCC from being able to claim the protection of Convention rights, since, being a governmental organisation, it would not be capable of being a victim within s. 7 of the HRA The majority of the House also held that the PCC was not a hybrid public authority in relation to the statutory enforcement of lay rectorial liability for chancel repairs. The only general guidance relating to the scope of s. 6(3) of the HRA 1998 was given by Lord Nicholls: essentially the contrast being drawn is between functions of a governmental nature and functions, or acts, which are not of that nature. I stress, however, that this is no more than a useful guide. The phrase used in the Act is public function, not governmental function. 11. Unlike a core public authority, a hybrid public authority, exercising both public functions and non-public functions, is not absolutely disabled from having Convention rights. A hybrid public authority is not a public authority in respect of an act of a private nature. Here again, as with section 6(1), this feature throws some light on the approach to be adopted when interpreting section 6(3)(b). Giving a generously wide scope to the 5 (2001) 81 P & CR [2001] EWCA Civ 713 [2002] Ch [2003] UKHL 37 [2003] 3 WLR Lord Nicholls, at para. [10]; Lord Hope, at para. [59]; Lord Hobhouse, at paras [87] [88]; Lord Scott, at para. [129]; Lord Rodger, at para. [166].

3 [2004] JR The Scope of Hybrid Public Authorities within the HRA expression public function in section 6(3)(b) will further the statutory aim of promoting the observance of human rights values without depriving the bodies in question of the ability themselves to rely on Convention rights when necessary. 12. What, then, is the touchstone to be used in deciding whether a function is public for this purpose? Clearly there is no single test of universal application. There cannot be, given the diverse nature of governmental functions and the variety of means by which these functions are discharged today. Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service. 11. Lord Nicholls continued (at para. [16]): the only respect in which there is any public involvement is that parishioners have certain rights to attend church services and in respect of marriage and burial services. To that extent the state of repair of the church building may be said to affect rights of the public. But I do not think this suffices to characterise actions taken by the parochial church council for the repair of the church as public. If a parochial church council enters into a contract with a builder for the repair of the chancel arch, that could hardly be described as a public act. Likewise when a parochial church council enforces, in accordance with the provisions of the Chancel Repairs Act 1932, a burdensome incident attached to the ownership of certain pieces of land: there is nothing particularly public about this. This is no more a public act than is the enforcement of a restrictive covenant of which church land has the benefit. 12. A majority of the House held that parochial church councils had certain functions of a public nature. Lord Hobhouse dissented (at para. [88]), not being satisfied that church councils performed any function of a public or governmental nature. 13. However, a majority also held that the nature of the relevant act was private, with Lord Scott dissenting. The PCC was therefore not a hybrid public authority within s. 6(3). Lord Nicholls viewed it as a burdensome incident attached to the ownership of certain pieces of land (at para. [16]). Lord Hope also saw liability as a burden which arises as a matter of private law from the ownership of glebe land (at paras [63] [64]). Lord Rodger concurred, holding that in performing its duties in relation to the maintenance of the fabric of the church, [t]he PCC may be acting in the public interest, in a general sense, but it is still carrying out a church rather than a governmental function (at para. [170]). 14. Lord Scott dissented, holding that the act was public, the important facts being as follows (at para. [130]): (1) The parish church was a church of the Church of England, a church by law established. (2) It was a church to which the Anglican public were entitled to have recourse, regardless of whether they were practising members of the church, for marriage, for baptism of their children, for weddings, for funerals and burial, and perhaps for other purposes as well. (3) Members of other denominations, or even other religions, were, if parishioners, entitled to burial in the parish churchyard. (4) The church was, therefore, a public building. It was not a private building from which the public could lawfully be excluded at the whim of the owner. (5) The PCC was corporate and its functions were charitable. Its members had the status of charity trustees. Charitable trusts were public trusts, not private ones. (6) A decision by a PCC to enforce a chancel repairing liability was a decision taken

4 46 The Scope of Hybrid Public Authorities within the HRA 1998 [2004] JR in the interests of the parishioners as a whole. It was not taken in pursuit of any private interests. Hampshire County Council v Graham Beer 15. Mr Beer, a trout producer in Hampshire, was accepted into the Farmers Market Programme when it was started by the local county council in It was then decided to transfer the running of the market to the stall-holders, and for this purpose a private company limited by guarantee, Hampshire Farmers Markets Ltd (HFML), was incorporated in December Mr Beer applied for a licence to participate in the 2002 programme, but his application was refused by a letter dated 14 November Mr Beer made an application for judicial review. 16. At first instance 9 Field J quashed the decision for breach of natural justice, the decision being amenable to judicial review, and also held that in excluding Mr Beer from its markets the company was acting as a public authority within s. 6 of the HRA. The council appealed on the amenability to judicial review and public authority grounds, but left the finding of breach of natural justice. 17. One of the issues in the Court of Appeal was whether the Aston Cantlow decision had superseded the previous authorities on hybrid public authorities of Poplar Housing Association Ltd v Donoghue [2001] EWCA Civ 595 [2002] QB 48 and R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366 [2002] 2 All ER The Court of Appeal 10 dismissed the appeal on the grounds that (a) the market was one to which the public had the right of access; (b) HFML owed its existence to the council, having been set up by the latter using statutory powers; (c) HFML stepped into the shoes of the council, using identical admission criteria to the council; and (d) the council assisted HFML in a number of respects. Criteria (b) and (c) were of particular importance. 19. Dyson LJ, giving the leading judgment, stated that it was perhaps somewhat surprising that there was no reference to Donoghue or Leonard Cheshire in Aston Cantlow, 11 and that (at paras 25 and 28): 12 [p]rovided that it is borne in mind that regard should be had to any relevant Strasbourg jurisprudence, then the passages which I have quoted from the judgments in the two earlier cases will continue to be a source of valuable guidance.... [T]he domestic case law on amenability to judicial review can be very helpful. But reliance on domestic cases must be tempered by, and sometimes yield to, relevant Strasbourg jurisprudence. This jurisprudence is especially likely to be helpful in determining whether a body is a core public authority. It is likely to be less helpful in relation to the fact-sensitive question of whether in an individual case a hybrid body is exercising a public function. 9 [2002] EWHC 2259 (Admin). 10 [2003] EWCA Civ 1056 [2003] 31 EGCS The cases having been cited to the House of Lords. 12 Citing Lord Hope in Aston Cantlow at para. [52].

5 [2004] JR The Scope of Hybrid Public Authorities within the HRA Comment 20. There are two issues to consider. First, has the decision of the House of Lords modified the approach which the courts must adopt in deciding whether a body is a hybrid public authority? Secondly, is the law satisfactory? 21. It can be argued that the majority speeches in Aston Cantlow appear to place great emphasis on a test of governmental function in relation to hybrid public authorities, and that is the essence of the test for whether a body is a hybrid public authority. If this argument were accepted, that would represent a significant change to the previous approach. 22. However, the Court of Appeal in Beer interpreted Aston Cantlow as treating the matter as a fact-sensitive question depending on a number of factors, as stated in Donoghue and Leonard Cheshire. This may suggest that the narrower approach suggested above is unlikely to gain currency. 23. Is the law satisfactory? Notwithstanding the (apparently non-public!) interest in ensuring that churches do not fall into disrepair, 13 it is submitted that the views of the Court of Appeal and of Lord Scott are preferable, for the reasons given by the latter (above), bearing in mind the emphasis placed by the Court of Appeal in Beer on the market being public, and that repair of the chancel was necessary in order for the PCC and the Church to perform its public functions. 24. The courts approach to the interpretation of s. 6 of the HRA 1998 is also questionable. Prior to the HRA 1998 coming into force, Lord Irvine LC indicated 14 that: In developing our proposals in Clause 6 we have opted for a wide-ranging definition of public authority. We have created a correspondingly wide liability. That is because we want to provide as much protection as possible for the rights of the individual against the misuse of power by the state within the framework of a Bill which preserves parliamentary sovereignity There are a number of references in the case law approving a similar approach: see, for example, Lord Woolf CJ in Donoghue (at para. [65]), and in Aston Cantlow itself, within the speech of Lord Nicholls (at para. [11]). 26. This is a valuable principle: the rationale of bringing rights home is to enable victims of breaches of human rights to enforce those rights in the domestic courts. In order that domestic protection of human rights is effective it is vital that a broad definition of hybrid public authority is utilised. 27. Unlike core public authorities, there is no problem with hybrid authorities being unable to be victims under the HRA 1998 and therefore being unable to enforce their own human rights [T]his decision has wide financial implications for the Church of England, going far beyond the outcome of this particular case : per Lord Nicholls at para. [4]. 14 Hansard, HL, col. 808, 24 November This statement is probably not admissible as evidence of Parliamentary intention, but might be sufficient to preclude the Government from contending to the contrary: see Lord Steyn s interpretation of the ratio of Pepper v Hart [1993] AC 593 in McDonnell v Congregation of Christian Brothers Trustees [2003] UKHL 63; see also Lord Hope in Aston Cantlow, at para. [37]. 16 See the concerns expressed by Dawn Oliver [2000] PL 476 at 492.

6 48 The Scope of Hybrid Public Authorities within the HRA 1998 [2004] JR 28. The decisions which have been made appear to reflect a narrower approach, for instance the Leonard Cheshire case (which gives rise to real concerns about the gap in human rights protection when a public authority contracts out some of its functions) 17 and, slightly less obviously, the Aston Cantlow decision. 29. One interesting aspect of Aston Cantlow is the acceptance by a majority of the House that the Church of England (and logically provincial church councils 18 ) had certain functions of a public nature such as organising church services, marriage and burial services, and the keeping of registers. The claim failed because statutory enforcement of common law liability for chancel repair was held to be a private act within s. 6(5). Presumably such actions would result in the categorisation of provincial church councils as public authorities. 30. In any case, even if the PCC been held to be a hybrid public authority, the Chancel Repairs Act 1932 would not have been held incompatible with the HRA 1998, since the House also held that there was no breach of Convention rights. 31. In those circumstances there was no need for the narrow interpretation of s. 6(3) adopted by their Lordships: the Wallbanks would still have been liable for chancel repairs. 17 See Craig (2002) 119 LQR Being the central forum for decision-making and discussion in relation to parish affairs, the parish being the basic building block of the Church: see para. [154].