Section 6 HRA: Public Authorities

Introduction

Section 6 of the Human Rights Act 1998 (HRA) requires public authorities in the UK to act in a way that is compatible with the European Convention on Human Rights (ECHR), unless primary legislation makes this impossible. The duty covers acts and omissions and applies across central and local government, the police, the courts and tribunals, and others carrying out public functions.

The term “public authority” is broad but not unlimited. Working out whether a body is caught often turns on the function it is performing at the time. This guide explains who counts, what the duty demands, the main limits and defences, and how to apply the law in real cases.

What You’ll Learn

• Who counts as a “public authority” under s.6 HRA (core and hybrid bodies)
• How the function-based approach works in practice
• What s.6 requires in policy, decision-making, and service delivery
• The s.6(2) defence when primary legislation leaves no choice
• How s.3 (interpretation) interacts with s.6 duties
• Key cases: Aston Cantlow, YL v Birmingham, Poplar Housing, Weaver, Ghaidan
• Practical steps for public bodies and litigators, including claims, remedies, and time limits

Core Concepts

Who counts as a “public authority”?

Section 6(1) makes it unlawful for a public authority to act incompatibly with Convention rights. Section 6(3) splits public authorities into two broad categories:

• Core public authorities: These are bodies that are public by their very nature. Examples include central government departments, local authorities, the police, prisons, and the courts and tribunals. They are always subject to s.6 across all their activities.

• Functional (hybrid) public authorities: These are private or third-sector bodies when, and to the extent that, they are carrying out functions of a public nature. They are caught by s.6 for those functions only. When they act in a private capacity, they are not subject to s.6.

Key factors considered by the courts (drawn from Aston Cantlow) include:

• Whether the function is publicly funded
• Whether it flows from statutory powers or duties
• Whether the body is taking the place of government
• The level of democratic accountability
• Whether the decision involves coercive powers
• The public interest served by the function

Exclusions:

• Parliament and those involved in parliamentary proceedings are excluded (s.6(5)).
• Purely private acts by any body (including a hybrid body) fall outside s.6.

Contracted-out services:

• A contractor does not become a public authority just because it has a public contract. The question is still whether the specific function is public in nature.
• After YL v Birmingham, Parliament addressed residential care arranged by local authorities by deeming certain providers to be exercising public functions for HRA purposes in that context.

Tip: Focus on what the body is doing, not just what the contract says. The same organisation may be in and out of s.6 depending on the task.

What does the duty require?

Public authorities must act compatibly with Convention rights in:

• Policy and strategy: Build rights considerations into policy development and review.
• Individual decisions: Apply the relevant right(s), ask whether any interference is lawful, pursues a legitimate aim, and is proportionate.
• Service delivery: Ensure day-to-day practices respect rights such as privacy (Article 8), liberty (Article 5), expression (Article 10), and non-discrimination (Article 14).
• Procedure: Give fair hearings, reasons, and a chance to respond where decisions affect rights (Article 6 and fairness under common law).

Proportionality in qualified rights (e.g. Articles 8, 9, 10, 11) typically requires you to show:

1. A legal basis for the interference
2. A legitimate aim (e.g. public safety, prevention of crime)
3. A rational connection to that aim
4. No less intrusive means available
5. A fair balance between individual rights and the wider interests relied upon

Courts and tribunals are themselves public authorities (s.6(3)(a)). This means s.6 has an indirect effect between private parties: when a court resolves a private dispute, it must reach a result that is compatible with the Convention.

Limits and the statutory defence

Section 6(2) provides a key defence:

• A public authority does not act unlawfully if it could not have acted differently because primary legislation requires the act; or
• It was acting to give effect to primary legislation (or secondary legislation that primary legislation requires), and there is no other way to act compatibly.

Before relying on s.6(2), the authority and the court must consider s.3 HRA:

• Section 3 requires legislation to be read and given effect, so far as possible, in a way that is compatible with Convention rights.
• If a compatible reading is not possible, a court of higher jurisdiction may issue a declaration of incompatibility under s.4 (which does not strike down the law but signals a problem for Parliament to consider).

Practical point: Always ask whether a Convention‑compliant interpretation of the statute is possible under s.3 before concluding that s.6(2) applies.

Key Examples or Case Studies

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37

• Context: A parochial church council (PCC) sought to enforce chancel repair liability.
• Ruling: The PCC was not a core public authority and, enforcing a private law liability, was not acting as a functional public authority.
• Takeaway: Status depends on the nature of the function. Private debt enforcement did not bring the PCC within s.6.

YL v Birmingham City Council [2007] UKHL 27

• Context: A private care home provided accommodation and care under arrangements with a local authority.
• Ruling: The care home was not a public authority for the purposes of s.6 in those circumstances.
• Takeaway: Contracting with a council is not enough by itself. Parliament later addressed residential care arranged by local authorities by deeming those providers to be exercising public functions for HRA purposes in that setting.

Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595

• Context: A housing association sought possession from a tenant placed by a local authority.
• Ruling: The association was a functional public authority, given its close links to the local authority and the public character of the housing function.
• Takeaway: Close alignment with a local authority and performance of a public housing role can bring a private body within s.6.

Weaver v London & Quadrant Housing Trust [2009] EWCA Civ 587

• Context: A large housing association’s termination of a social tenancy.
• Ruling: The trust was a public authority when allocating and terminating social housing tenancies.
• Takeaway: Large-scale social housing functions, carried out in the public interest with public accountability features, may be public in nature.

Ghaidan v Godin-Mendoza [2004] UKHL 30

• Context: Succession rights under the Rent Act 1977 for same‑sex partners.
• Ruling: The House of Lords used s.3 to interpret the statute so that a surviving same‑sex partner could succeed to the tenancy.
• Takeaway: Strong example of courts applying s.3 to achieve a Convention‑compatible reading, which public authorities must then apply under s.6.

Campbell & Cosans v United Kingdom (1982) 4 EHRR 293

• Context: Parents objected to corporal punishment in state schools.
• Ruling: Violations of Article 2 Protocol 1 (parental rights in education) read with Article 9.
• Takeaway: Education authorities must respect parents’ convictions and students’ dignity when setting discipline policies.

Practical Applications

For public bodies and contractors:

• Check status: Are you a core public authority? If not, are you performing a public function in this context?
• Build rights checks into workflow: Screen policies and decisions against the relevant Convention rights.
• Record proportionality reasoning: Note the legal basis, aim pursued, options considered, and why the chosen measure is the least intrusive.
• Engage with those affected: Give a fair chance to comment, especially where rights are directly impacted.
• Train staff: Make sure front‑line teams know common rights risks (privacy, liberty, expression, non-discrimination).
• Manage contracts: Where tasks are likely to be public in nature, set clear expectations on rights‑compliant delivery and monitoring.
• Use equality and human rights assessments to flag risks early.
• Consider s.3 first: If relying on legislation, check if a Convention‑compatible reading is possible before invoking s.6(2).
• Keep evidence: Good records often decide whether a measure is proportionate and fair.

For litigators:

• Identify the defendant: Is the body a public authority for the act complained of? If a court is deciding a private dispute, remember the court itself must comply with s.6.
• Choose the route: Most s.6 challenges go by judicial review. Private law claims may still engage s.6 because the court is a public authority.
• Standing and time limits: The claimant must be a “victim” (s.7). Issue proceedings within one year of the act complained of (courts may extend if equitable).
• Remedies (s.8): The court may grant just and appropriate relief, including damages where necessary to afford just satisfaction.
• Evidence: Build the proportionality case on both sides—set out aims, options, and less restrictive alternatives.
• If primary legislation compels the result and s.3 cannot save it, seek or anticipate a declaration of incompatibility (s.4) in the appropriate court.

Common contexts:

• Immigration and asylum: Article 8 family life assessments, procedural fairness, and risk on return (Articles 2 and 3).
• Policing: Stop and search, detention, and retention of data (Articles 5, 8, and 14).
• Housing and social care: Possession, allocations, and care planning—public function questions often arise with providers.
• Health: Treatment decisions, deprivation of liberty, and consent.
• Education: Dress codes, faith accommodation, discipline, and parental rights.

Summary Checklist

• Identify whether the body is a core or functional public authority for the act in question
• Pinpoint the Convention rights engaged and whether they are absolute, limited, or qualified
• Apply proportionality for qualified rights and record the reasoning
• Consider s.3 HRA before relying on s.6(2); only then consider the statutory defence
• Remember courts are public authorities—s.6 can affect private disputes
• Choose the right procedure: judicial review or private claim with HRA arguments
• Check standing (victim) and the one‑year time limit; assess remedies under s.8

Quick Reference