Institutional Scope of National Human Rights Protections: A Comparative Study in Relation to 'Public Authorities'

The project, commissioned by the Ministry of Justice, aims to identify, through a comparative study, the approaches that have been taken to the issue of which "public authorities"/ "functions of the State" are subject to the national human rights legislation applying the ECHR in other countries to which the ECHR is applicable. It will then analyse how these approaches can inform the debate in the UK. It is also hoped to be able to examine, once the primary research is completed, whether any of the countries analysed have any horizontal enforceability of rights and the effect of this.

Research Question

The Human Rights Act 1998 applies the ECHR in respect of the activities of "public authorities", which include courts and tribunals, as well as "any person certain of whose functions are functions of a public nature", with the exception of the Houses of Parliament and its proceedings. The Act does not provide a clear definition of "functions of public nature" and the courts have not been in agreement as to its full scope.

This question has arisen particularly frequently in cases involving the privatization of services by the State. In the latest relevant case, YL v Birmingham City Council and Others [2007] UKHL 27, the House of Lords decided that a private care home, when providing accommodation and care to an elderly resident, pursuant to arrangements made with a city government body, was not performing 'functions of a public nature' and thus should not be considered a 'public authority' subject to compliance to the ECHR. However a strong minority opinion was of the view that a wide definition should be given to 'functions of public nature' to ensure that such services be subjected to the ECHR.

Research Partners

Rapporteurs in twenty states member of the Council of Europe are to respond to a questionnaire to determine how other Council of Europe countries have approached the question of the definition of "the State", and "public authorities" - or their equivalent - for the purposes of the application of the ECHR. In particular, it seeks to identify to what extent services which have been privatised or 'contracted out' require those bodies performing them to comply with the ECHR.