What do we mean by the State, Governments & Public Bodies?
The Human Rights Act and the European Convention on Human Rights set out the duties on those in public power to respect, protect and fulfil our human rights. In this explainer, we look at the different people and bodies that have duties and how you might see them referred to in laws, legal cases and guidance.
The State: There has been lots of debate about how to define a “state”, but it’s typically used to refer to a territory or country where people live under the same system of public power. There are three branches that make up the State: the legislature (Parliament) that makes the laws; the executive (governments) that puts laws into effect; and the judiciary (courts) that decide if laws are being followed. You can read more about this in our explainer on the separation of powers. When we talk about actions of “the State”, we’re talking about actions taken by those exercising power under any of those branches. The United Kingdom is one state even though it contains four different countries (England, Wales, Scotland and Northern Ireland) because UK Parliament has ultimate legal power in all of them.
The Government: The UK Government (sometimes referred to as the Westminster Government) is the central executive in the UK, but there are also the Scottish Government, the Welsh Government and the Northern Irish Executive (the Human Rights Act (HRA) does not apply to the Government of Ireland as it is outside the UK, but the European Convention on Human Rights (ECHR) is part of Irish law). All these governments have duties under the Human Rights Act, explained below, as they are part of the State.
Public bodies / public authorities: Public authorities can be what’s known as “core” or “hybrid”. A “core” public body is an organisation that is publicly funded to deliver a State service – such as healthcare, education or policing. These bodies are ultimately accountable to the government and therefore have duties under the HRA. “Hybrid” public bodies are private organisations 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 part of the Human Rights Act often causes confusion, so we’ve put together an explainer on hybrid public bodies and which types of organisations have, and haven’t, been found to be hybrid public bodies by UK courts in the past.
What does the European Convention on Human Rights actually say?
The European Convention on Human Rights (ECHR) says “The Governments signatory hereto…have agreed…the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined”. (Jurisdiction means where a body has legal power. For example, the UK has the power to make decisions about crimes committed in the UK but doesn’t have any power when crimes are committed in France, as that is out of its jurisdiction.) The ECHR also refers throughout to the Member States of the Council of Europe. The “High Contracting Parties” are the Member States that have signed the Convention.
What does the Human Rights Act actually say?
Section 6 of the Human Rights Act (HRA) says “it is unlawful for a public authority to act in a way which is incompatible with a Convention right…”public authority” includes a court or tribunal, and any person certain of whose functions are functions of a public nature but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.”
Why does the Human Rights Act not cover proceedings in Parliament?
The HRA does not limit proceedings in UK Parliament, even though it is part of the State, because of the principle of parliamentary sovereignty. This means UK Parliament is free to make any law it likes. If a law is found to breach human rights, courts can make a “declaration of incompatibility” but cannot change the law. Individuals can also bring challenges when governments or public bodies, including courts, do not apply UK Parliament’s laws in a way that is compatible with human rights even though it would be possible to do so. Find out more about how laws are applied in our briefing on Section 3 of the HRA.
It's important to say that parliamentary sovereignty does not work in the same way in devolved nations. The Scotland Act, the Northern Ireland Act and the Wales Act explicitly say that the devolved parliaments and assembly do not have the power to make laws that are not compatible with the ECHR.
Find out more about human rights law.
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