By Herbert Bradley,2014-11-26 12:26
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    Paul Rishworth, The University of Auckland

    Janet McLean, University of Dundee


    Both section 3(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) and

    section 6 of the Human Rights Act 1998 (UK) (‗HRA‘) impose the obligation of 1rights-observing on private persons or bodies who perform a public function.

    In principle, the idea behind these sections is simple. Bills of rights are intended to constrain the state. When the state authorises or permits a private person to perform functions of a type that would be constrained if the state performed them, it seems right to visit the state‘s obligations on that private body. To capture that intended

    sphere of direct application to private actors, the NZBORA and HRA each employ the concept of public function. Acts done in the performance of that function must

    comply with rights obligations, and will be unlawful if they do not.

    But it has proved difficult to define public function. In a sense, the label public is a

    conclusion based upon an inquiry into how a particular function ought to be regarded. While various factors are generally agreed to be in play whether and how public

    money is involved, whether statutory powers are exercised, whether the body takes the place of government, whether it performs a public service, and so on their

    application to a specific dispute can be contentious. The recent decision of the House 2of Lords in YL v Birmingham City Council is a case in point. There, three Law Lords

    held that a private rest home caring for a publicly-funded patient, placed there by the Birmingham City Council, was not engaged in a public function. Two Law Lords held that it was.

    As one would expect when there is a division of opinion at that level, there is much to be said for each perspective on what constitutes a public function. Lord Nicholls 3understates the matter when he says: ‗The term ‗public‘ is of uncertain import. The

1 Section 3 of the New Zealand Bill of Rights Act 1990 reads:

    This Bill of Rights applies only to acts done

    (a) By the legislative, executive, or judicial branches of the Government of New Zealand; or

    (b) By any person or body in the performance of any public function, power, or duty conferred or

    imposed on that person or body by or pursuant to law.

    Section 6(1) of the Human Rights Act 1998 (UK) makes it unlawful for a ―public authority‖ to act in

    away that is incompatible with a Convention right. By s 6(3)(b) a public authority includes a person who has functions of a ―public nature‖, but (by s 6(5)) not in respect of acts that are ―private‖.

2 [2008] 1 AC 95.

    3 Lord Nicholls in Aston Cantlow v Wallbank [2004] 1 AC 546, at [6].

    related field of inquiry in the United States, state action, has been called a conceptual 4disaster area. In New Zealand the legislative history of the ‗public function‘ test shows that drafters drew on that US experience of ‗state action‘ and attempted to 5capture it in the words ―public function‖. They then added, presciently: ―[section 3]

    can only be a first step in the drawing of the line between public action which would 6be caught by the Bill of Rights, and private action, which would not be‖. It is as if the

    idea of ―public function‖ was really a code to denote the whole set of issues that would need to be faced under a Bill of Rights, and certainly not as a self-applying formula.

    So no one expects the public function test to be easy. The point of this paper, however, 7 is not to evaluate the merits of the dissent and majority in YL, for that has been done.

    Rather than launching a frontal assault on the question of what defines a public function and whether YL is correct, we aim to ask some questions about the whole enterprise. These are:

    1. Whether the choice of perspective (and affixing the label public function)

    might be influenced by the substance of the rights dispute underlying the case.

    We think it is.

    2. Whether it is necessary or helpful, in deciding whether human rights standards

    should regulate a particular impugned action, to engage in the blunt

    assignment of the ‗public function‘ label. We think it is not.

    This leads us to the conclusion that the intervention of human rights law in the form of HRA application was not required in YL. Rather, human rights were being

    appropriately delivered by the mechanisms of ordinary contract law and the statutory functions and duties imposed on the participating parties. That is to say, we agree with the majority in the House of Lords, but for the reason that the underlying merits of the case did not require assigning the label ‗public function‘.

    In order to address these questions we begin with general points about how bills of rights operate as a legal standard for the state‘s actions and its law – and, through

    those actions and that law, for the private sector. Then we consider the facts and reasoning of YL and selected other cases from the UK and NZ on public function. We then return to the questions just posed, drawing upon the preliminary points made and the case studies.

4 C Black, ‗The Supreme Court 1966 Term – Foreword: ―State Action‖ Equal Protection, and

    California‘s Proposition 14‘ 81 Harv L Rev 69 (1967) at 95.

    5 See the White Paper that set out the draft New Zealand Bill of Rights and provided commentary, A

    Bill of Rights for New Zealand, (1985) AJHR A6.

    6 Ibid, 10.23

    7 See further S Palmer, ‗Public, Private and the Human Rights Act 1998: an Ideological Divide‘ (2007) 66 CLJ 559; M Elliott, ‗―Public‖ and ―Private‖: Defining the Scope of the Human Rights Act 1998‘ (2007) 66 CLJ 485; A Williams ‗YL v Birmingham City Council: Contracting Out and ―Functions of a

    Public Nature‖‘ (2008) 4 EHRLR 524; J Landau, ‗Functional Public Authorities After YL‘ [2007] PL




    1. The idea of a bill of rights: a baseline for acceptable state conduct and law The idea behind most modern bills of rights is to establish minimum standards that the state must observe in its actions and in the laws it makes. The standard is expressed in vague and benign generalities (the human rights themselves) but given specification in particular contexts. These twin concepts broadly worded rights

    allied (where appropriate to the nature of the right) with limits that, if prescribed in

    some (other) law, must be reasonable and proportionate set the baseline for state law

    and conduct.

    Importantly, both the HRA and the NZBORA affirm rights sourced from an 8 and International international treaty (the European Convention on Human Rights9Covenant on Civil and Political Rights respectively). Those international obligations

    are to be discharged, for the benefit of a state‘s citizens and residents, through

    appropriate laws and actions. This includes a legal system and administrative structure that respects, affirms and promotes rights and provides remedies for breach. In that sense rights generate positive duties and are not observed simply by refraining from interference. Rights-respecting obligations extend beyond the state, to private actors but may (as discussed below) take a different form.

    2. Rights as reasons for action

    The ubiquity of the proposition may mask it, but in fact a sizable proportion of our law the law operating between citizens has as its aim the protection of life, bodily

    integrity, autonomy, liberty and property. Much of our statutory law and various tort actions gives expression to what a bill of rights, operating between citizens, would require. So too, does the fact that in certain areas the common law goes so far and no further: the general absence of restraints on religion, expression and association

    reflects the value ascribed to those fundamental liberties. Rights supply reasons for positive law, as well as defining appropriate limits on that law.

    While the international and domestic human rights instruments have been drafted and enacted only recently, they express ideas that have animated law for centuries. Indeed, that is why the rights that appear in them were selected: they reflected deep values thought to be already embedded in the major legal systems of the world. That said, some rights, such as rights against discrimination, are the product of quite modern sensibilities. And whether new or not, all rights can be conceived as having fresh applications in modern contexts. And that is our next point.

    3. Bills of rights as the occasion for re-evaluation

    The enactment of domestic bills and charters articulating broad human rights can prompt re-evaluation of the balances struck in hitherto settled law, especially common law. While much of our settled law makes sense in rights terms, it is not always perfect. Arguments for refinement occur mainly around the margins of a law

    8 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1959; TS 71 (1953); Cmd 8969.

    9 999 UNTS 171; UKTS 6 (1977); Cmnd 6702.


otherwise well-settled (for example, how to protect privacy in a digital age when 10celebrity pictures have a new value and are so easily taken; refining defamation law 11to allow robust political commentary).

    YL is explicable on this basis, too. Given a burgeoning elderly population needing care in an era of rising medical costs, it is not surprising that the spotlight is falling on a new frontier how care homes for the elderly are permitted to deal with their residents and whether appropriate regard is given to their interests by commercial operators. All this is bundled under the idea of respect for home to as yet uncertain

    effect, given that cases like YL have been about threshold questions of HRA-

    applicability and not yet about the substance of the rights involved. For most persons, at least for most of their lives, their right to a home is protected by real property law, by landlord and tenant law, and by the details of applicable statutes. But these traditional protections fail to capture the full ambit of what might need to be involved when circumstances force people into the care of others, and often at public expense. The idea of a right to a home in another person’s home is similarly at the margins of

    a settled core. The general principle of respect for home life may need a new specification, or iteration, in this particular context. Article 8 of ECHR is making this possible or at least supplies the language and form in which the examination is taking place. (The underlying and animating sentiment that older people need both 12care and protection obviously has a source other than the ECHR.)

    So, to recap, rights instruments can be the occasion for re-evaluation. This is because the various iterations of fundamental rights principles the myriad statutes and

    common law rules that protect life, liberty and due process can always be judged

    afresh against the higher level general principles of which they are iterations. The

    status quo may not attain the minimum standards that the HRA or the NZBORA requires. If it does not, the question is what can be done. In the case of privacy and defamation, adjustments to common law doctrine have been made.

    In principle, common law must meet BORA and HRA standards. Some may attribute this to the judicial branches being positively ‗bound‘ to make that happen, or to the simpler proposition that common law ought to be (or at least generally is) made to reflect the democratic articulation of fundamental values as expressed in quasi-constitutional rights instruments. This may be another sense in which Carol Harlow‘s

    observation is borne out that the modern tendency is for the private law to be 13colonised by public law. This can have the effect of indirect application of bill of 14rights standards to citizens in their conduct towards each other. But, as the next

10 Hosking v Runting [2003] 3 NZLR 385 (NZCA).

    11 Lange v Atkinson [1998] 3 NZLR 424 (NZCA).

    12 See for example, A Bill of Rights for the UK? Twenty-ninth Report of the Session 2007-2008 Joint

    Committee on Human Rights HL Paper 165-1, HC 150-1 and its references to vulnerable groups in society such as the old, the disabled, the vulnerable and children (pp5, paras 138-145). 13 C Harlow, ―The ‗Hidden Paw‘ of the State‘ in D Dyzenhaus, M Hunt, G Huscroft (eds), A Simple

    Common Lawyer (Oxford: Hart Publishing Ltd, 2009) 77-8.