Public authorities: what is a hybrid public authority under the HRA?

Abstract

An analysis of when the HRA subjects private bodies to the Convention is highly germane to any discourse concerning the impact of the HRA on private law. The common law horizontal effect mechanism is one route through which to hold private bodies, albeit indirectly, to Convention standards. Another route is through the hybrid public authority scheme – if a private body performs ‘functions of a public nature’ under s 6(3)(b), it is regarded during its public activity as a public authority and must respect the Convention. This chapter builds on earlier work which attempts to coax the judges into adopting a wider interpretation of s 6(3)(b). Its central message is that there is no need for the courts to construe that provision as restrictively as they have done since the HRA entered into force. Whilst ostensibly public in nature, hybrid public authorities are institutionally private bodies. The crucial effect of this, coupled with a close analysis of relevant Strasbourg jurisprudence, is that hybrids enjoy Convention rights themselves under the HRA, even during the performance of their public functions. They can therefore assert their own Convention rights as a defence to Convention-based challenges by claimants in court – a powerful method of self-protection which, once properly appreciated, should help ease judicial reluctance to widen the scope of s 6(3)(b) to encompass a greater range of functions performed by private bodies.