440 General Principles of Constitutional and Administrative Law

the collective or public interests (Director General of Fair Trading v.

Proprietary Association of Great Britain (2001)). In a judicial review

case an NGO would be able to challenge a decision only on domestic

grounds while a victim could join the same proceedings on human

rights grounds (s. 7 (3)). However if the common law claims to recog-

nise human rights irrespective of the Act, then an NGO might have

standing in a representative capacity. The Act does not create criminal

liability (s. 7 (8)).

Under s. 8 the court can award any of the remedies normally

available to it ‘as it considers just and appropriate’. Damages can be

awarded only by a court which has power to award damages or order

compensation in civil proceedings (e.g. not by the Crown Court) and

then only if the court is satisfied that ‘the award is necessary to afford

just satisfaction to the person in whose favour it is made’ (s. 8 (4)). The

phrase ‘just satisfaction’ is part of the jurisprudence of the ECHR and

the court must take into account the principles applied by the ECHR

(under Art. 41) in awarding compensation (ibid.). Under the juris-

prudence of the ECHR, compensation is based on restoring the victim

as far as possible to his original position, including an award of legal

costs, and also includes compensation for non-pecuniary loss such

as humiliation. Compensation can also be given in relation to antici-

pated future breaches (Marcic v. Thames Water Utilities Ltd (No. 2)

(2001)). Compensation is discretionary and the applicant’s conduct can

be taken into account (see e.g. Halford v. UK (1997), Campbell v. UK

(1992), Kruslin v. France (1990); cf. Mowbray, 1997). Awards made by

the ECHR tend to be low.

In relation to the judicial functions of a court or tribunal, pro-

ceedings must be by way of appeal or judicial review or otherwise as

provided for by rules made by the Lord Chancellor or Secretary of

State. Damages cannot be awarded against a court or tribunal in respect

of action taken in good faith except in respect of arrest or detention

contrary to Art. 5 (5) of the Convention (s. 9).

By virtue of s. 11 (b), a person’s reliance on a convention right does

not restrict his right to bring other proceedings.

18.4.6 Public authorities

The European Convention on Human Rights applies to states and their

agencies. Similarly the Human Rights Act can be directly enforced only

against a public authority (s. 6 (1)). For the purposes of the Act, ‘public

441

Human Rights and Civil Liberties

authority’ includes a court or tribunal (s. 6 (3)). A public authority also

includes any body ‘certain of whose functions are functions of a public

nature (ibid.). However, Parliament or a person exercising functions in

connection with proceedings in Parliament is not a public authority

(s. 6 (4)). Thus the separation of powers is acknowledged in the form

of parliamentary privilege except the House of Lords in its judicial

capacity is not a public authority.

There are therefore two kinds of public authority. First there are

bodies such as central and local government and the police which are

inherently public. All the activities of these bodies fall within the Act.

Secondly, there are ‘functional’ public authorities. These are more

difficult to identify. Functional public authorities may perform some

functions on behalf of government but also perform private functions.

The ‘private acts’ of bodies of this kind do not fall within the Act

(s. 6 (5)). The issue is particularly important given the current popu-

larity of various forms of privatisation.

The European Court of Human Rights has not addressed the ques-

tion directly of what is a public function. However, it has hinted at an

approach which asks whether the particular act is carried out under

the control of the government or on behalf of the government (see

Sigur Jo´nnson v. Iceland (1993)). In Donoghue v. Poplar Housing and

Regeneration Community Association Ltd (2001) the Court of Appeal

followed this approach. A housing association had evicted a tenant

who claimed that this violated her right to home and family life under

Art. 8 of the Convention. The Court of Appeal held that whether such

a body was a public authority depended on the particular function that

it was carrying out in relation to the claimant. Lord Woolf emphasised

that it was not sufficient in itself that the body was carrying out

functions in the public interest, nor that it was publicly funded, nor

that it was subject to regulation by the government as opposed to

being subject to government direction. The association was a public

body in connection with its treatment of former local authority tenants

because it had been established by the local authority to take over

its housing stock, its activities were significantly influenced by local

authority policy and there were local authority representatives on

its governing board. The test therefore seems to be that the body is

‘governmental’ rather than public in a broad sense. This is analogous to

the test for deciding whether a body exercises public functions for

judicial review purposes (above Chapter 17). However, the Court held

on the merits that the public interest in ensuring that there was

sufficient housing for those in need outweighed the tenant’s right

to a home.

442 General Principles of Constitutional and Administrative Law

18.4.7 Horizontal effect

It is controversial whether the Act should have ‘horizontal effect’ in

the sense that private persons as well as public bodies should be

required to respect human rights. On the one hand it is arguable that

human rights should pervade all law. Even private legal relationships

are created and defined by the state which could therefore be regarded

as responsible for ensuring that the law meets the minimum standards

appropriate to a democratic society. For example it would be anomal-

ous if there were a right of privacy against a NHS hospital, a state

school and the BBC and not a private hospital, school, newspaper or

television company. On the other hand the ECHR itself is enforceable

only against a state (Art. 34) and the Human Rights Act does not

grant right directly to an individual but imposes obligations on courts

and other public authorities to comply with the specified Convention

rights. Moreover the Act does not include Art. 1 of the ECHR which

requires states to ‘secure to every one within their jurisdiction’ the

rights and freedoms conferred by the Convention.

However, the Act might have ‘indirect’ horizontal effect. By virtue

of s. 6, the courts are public authorities. Wade (1998, 2000) therefore

suggests that a court would act ‘unlawfully’ if it did not apply Conven-

tion rights in every case before it, even between private persons. The

victim’s right would be against the court itself not directly against the

other private party. A less extreme view is that, while the Act cannot

create a new cause of action against a private body, the Convention

might still be used as a shield so as to prevent the court from granting

a remedy or making an order in proceedings between private parties

and also as a way of developing existing common law rights (Hunt,

1998). The matter would therefore have to arise in the course of

ordinary legal proceedings in the form of a claim in domestic law in

which a human rights dimension could be implied.

Examples of indirect horizontal effect in this more limited sense are

as follows:

. The court‘s duty under s. 3 to interpret legislation in line with

Convention rights is not limited to cases involving public bodies.

It would be odd if the same statute had to be interpreted differently

depending on whether a public or private body was relying upon it.

. Using human rights as a shield. A private person might be denied

the assistance of the court in enforcing a claim contrary to a Con-

vention right against another private entity. In particular a court

order for damages or an injunction, or an enforcement order might

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Human Rights and Civil Liberties

be opposed on human rights grounds. For example a court might

refuse an injunction against a newspaper in order to protect freedom

of expression against a competing right of privacy (Chapter 20),

or to give a possession order to a landlord who attempted to evict

a tenant from her home (R. McLellan) v. Bracknell Forest DC [2002]

1 All ER 899, 913; see also Venables v. News Group Newspapers

(2001)).

. Developing existing rights under the common law. In Douglas and

Zeta-Jones v. Hello! Ltd (2001) the Court of Appeal used s. 6 as the

basis for recognising a common law right of privacy (below Ch. 20)

although they did not commit themselves fully to endorsing Hunt’s

argument for horizontal effect. The courts sometimes relied on

human rights even before the Act (see e.g. Rantzen v. Mirror Group

Newspapers (1994)).

There are, however, strong arguments against horizontal effect (see

Buxton, 2000; Phillipson, 1999). In particular, in ECHR jurisprudence

Convention rights are, as a matter of substance, rights only against the

state and its emanations. For example, a tenant has no Convention

rights against a private landlord. If this correct then there is nothing

for the court’s own duty to bite on. In Donoghue v. Poplar Housing and

Regeneration Commmunity Association Ltd (2001), Lord Woolf CJ

seemed to accept this when he said that the argument based on the

court itself being a public authority only avails the defendant if there is

a contravention of Art. 8. From this perspective, the court’s duty as a

public authority to comply with Convention rights refers only to its

own procedures in relation to Art. 6 (fair trial). Nor, according to

Buxton is there any general indication in the Act itself or the parlia-

mentary debates of so radical a change (see also Wainright v. Home

Office (2002), RSPCA v. Attorney General [2001] 3 All ER 530 at 547).

A compromise can be found in ECHR jurisprudence. Some rights are

especially vulnerable to abuse so that the state has a positive duty to

ensure that even private bodies comply with them (see Kroon v.

Netherlands (1994) A 297-C). The ECHR has held under Art. 8

(privacy), even though this is expressly limited to the acts of public

authorities, Art. 9 (freedom of religion), Art. 10 (freedom of expres-

sion), Art. 11 (freedom of association ) and Art. 12 (right to marry),

that the state must take positive protective action even in the sphere

of private relationships (see X and Y v. Netherlands (1985): child abuse;

A v. UK (1998), parental chastisement: Rees v. UK (1986): facilitating

transexualism). This might for example subject the press to a duty

under the Act to respect privacy, (see A v. B (2001)).

444 General Principles of Constitutional and Administrative Law

18.4.8 Retrospective effect

The Act applies to legislation made both before and after it came into

force (s. 3 (2) (a). However, the Act is not fully retrospective. In the

case of a defence to ‘proceedings brought by a public authority’ it

applies whenever the act in question took place but otherwise applies

only where the particular act complained of took place or is continued

after the Act came into force (s. 22 (4)), see Venables v. News Group

Newspapers (2001), R. v. DPP ex parte Kebilene (1999), Wilson v. First

County Trust Ltd (2001)). It may not be clear what counts as the par-

ticular act. In this context R. v. Lambert (2001) provides a good illustra-

tion of different judicial approaches. The question was whether the Act

applied to an appeal made by the victim to the House of Lords after the

Act came into force against a conviction before the Act. The House

held that English law‘s traditional presumption against retrospectivity

should apply and that the relevant act complained of was the convic-

tion. However, Lord Steyn argued firstly that the court should try and

advance the broad purpose of the Act and secondly that the plain

words of the Act impose a duty on all public authorities, including the

House of Lords in its judicial capacity, to apply Convention rights (see

s. 6 (1)). He thought that the relevant act was the appeal itself so that

the protection of the Human Rights Act applied.