The House of Lords (then the highest court in the UK) first considered the idea of “hybrid” public bodies in the case of Mr and Mrs Wallbank v the Church Council of the Parish of Aston Cantlow. People who own church land, known as “lay rectors”, are responsible for repairing the chancel (around the altar) of churches. Mr and Mrs Wallbank were lay rectors who received a notice saying they had to pay almost £100,000 to repair their church’s chancel. They said the church council was a public authority with duties to respect their human rights and that the notice interfered with their Article 1, Protocol 1 right to peaceful enjoyment of possessions. The Court said, “a hybrid public authority is not a public authority in respect of an act of a private nature” and asked, “what, then, is the touchstone to be used in deciding whether a function is public for this purpose?” It said there cannot be a single test because of the diverse nature of governmental functions but relevant factors 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.” The Court ultimately decided that the church council was not a public authority, saying “it plainly has nothing whatever to do with the process of either central or local government. It is not accountable to the general public for what it does. It receives no public funding, apart from occasional grants from English Heritage for the preservation of its historic buildings.”
Hybrid public bodies: What is a “public authority” under the Human Rights Act?
Section 6 of the Human Rights Act (HRA) says “it is unlawful for a public authority [also known as a public body] to act in a way which is incompatible with a Convention right”. In this explainer, we look at the different types of organisations that are classified as public bodies and why this might include more organisations than many people expect.
Core public bodies
A “core” public body is what most people think of when they think of a “public body”. This is an organisation that is formally established and publicly funded to deliver a state service – such as the NHS or police forces. These bodies are ultimately accountable to the government and therefore have duties under the HRA.
Hybrid public bodies
The HRA also specifies that “public authority” includes “any person certain of whose functions are functions of a public nature”. This is what’s known as a “hybrid public body”.
Hybrid public bodies are private organisations or charities that also deliver public services. These bodies have duties in relation to the public services they offer, but not the private services. For example, a private organisation that runs prisons and also offers private security services would only have responsibilities under the HRA in relation to their work running prisons.
This means a body doesn’t need to be a traditional public body to have legal duties under the HRA. The emphasis is on the nature of the service being delivered (are they “generally expected to be performed directly or indirectly by the State”?) and not the nature of the body delivering it. This is really important as we no longer live in a time where functions we traditionally associate with the State, such as education and healthcare, are always being delivered directly by the State. This broader definition seeks to prevent a gap in protections where the State has contracted out delivery of one of its functions. There is no single test to identify a public function, but a good indicator is whether the body delivering the service is being funded by the State to do so in place of a statutory service.
The rights of hybrid public bodies
In Mr and Mrs Wallbank’s case discussed below, the court noted that “giving a generously wide scope to the 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”. Under Article 34 of the ECHR, rights can be claimed by “any person, non-governmental organisation or group of individuals”. The Joint Committee on Human Rights gave the example that “newspapers and publishers regularly invoke the right to freedom of expression, not only in litigation, but also in their approach to Government policy” – like when Mirror Group Newspapers published photos of Naomi Campbell coming out of a Narcotics Anonymous meeting and the Court had to balance Naomi’s right to privacy with the newspaper’s right to freedom of expression. Core public authorities cannot be “victims” of human rights breaches, whereas hybrid public authorities can in some cases.
In real life
Find out more about human rights law.
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