Defining a 'Public Authority' under the ECHR

The European Convention on Human Rights was designed to protect individuals from the excesses of Government. It was established under the direction of one of Britain's greatest prime ministers, Winston Churchill and arises directly from the experiences of world war II.

Any individual may, having exhausted all domestic remedies, take a case to the Court and if upheld have the Council of Europe act on their behalf to right the wrong. Different European countries respond differently to a verdict that their laws are incompatible with the Convention. The United Kingdom (the country which is challenged most often) responds and adapts their laws to the verdicts of the Court. France is a little slower and has the most outstanding amendments to make.

There are of course 'pure public authorities'; these include government departments, parish authorities, or the police. But the approach taken by the United Kingdom interprets these in a very narrow sense

Where the State relies on private organisations to perform essential public functions, in particular those necessary for the protection of Convention rights, it retains responsibility for any breach of the Convention that arises from the actions of those private organisations. The State is also responsible for violations of Convention rights by private parties as a result of the inadequacy of domestic legislation.

The consequence is that, as the law presently stands, a private body is likely to be held to be a public authority performing public functions (a “functional” public authority) if:

• its structures and work are closely linked with the delegating or contracting out State body; or

• it is exercising powers of a public nature directly assigned to it by statute; or

• it is exercising coercive powers devolved from the State.

Beyond these categories, whether the courts will find that a body a public authority remains extremely uncertain. Factors such as:

• the fact of delegation from a State body,

• the fact of supervision by a State regulatory body,

• public funding,

• the public interest in the functions being performed, or

• motivation of serving the public interest, rather than profit,

are not in themselves likely to establish public authority status, though they may have some cumulative effect, indicating that the function performed has a “public flavour”.

We await further decisions by the Court to more narrowly define a 'public authority'.