A few weeks ago as a preparation for a workshop, we had the task of finding the meaning of 'public authority' in the English law, especially in relation to the Human Rights Act of 1998. After conducting my research I concluded that the term public authorities is a truly problematic one especially when it comes to asserting rights.
In most countries of the world, a legal entity is considered to be public authority when it is regulated by public law, such as the police, local authorities etc. Section 6(3b) of the Human Rights Act 1998 states that any person whose functions are of public nature is a public authority. Looks pretty straight forward...but its not. The Human Rights Act of 1998 is essentially the implementation of the European Convention on Human Rights (I not going to analyse the reasons why the act was implemented 50 years after the convention was drafted or the significance of the act being the first bill of rights after the 1689 Bill of Rights1) into the English law.
What might be the problem then? Simply fifty or so years ago public authorities throughout Europe had one major common characteristic they where all public...today in a globalized neoliberal environment...many of them are not (thankfully in this writers opinion, most of the core authorities are still public like say the police).
From the theories of Milton Friedman 2, to the rise of Thatcherism3, to today's government austerity measures, over the last decades there has been a steady trend to the privatization of parts of the public services spectrum, creating a myriad of problems concerning the legal status of private but yet public authorities. Examples of the above mentioned problems can be seen especially in health care and public authorities where in various cases private elderly homes contracted by local authorities either closed or had to lay off workers in fear of bankruptcy and as a result leave elderly people in the street4. With the free market principles in effect when the said elderly people brought the cases to court alleging a violation of human rights the courts in most cases found that the elderly care homes where private companies, not public authorities thus there was no human rights violation.
But things get even worse... What made me consider writing this post was the front page of the Guardian a couple of weeks ago reporting on the death of an illegal immigrant from Africa during deportation, with witnesses alleging asphyxiation by the security guards accompanying him5. As the newspaper reported the deportation was handled by a private security firm under being under government contract. And so I posed the question to my self if the unfortunate mans family took the private firm to the courts on a breach of human rights what would be the most possible outcome? Looking at the previews judgements concerning the nature of public authority, there is a high possibility that the security firm as a private company will be held not to be a public authority and thus no human right breach occurred as the right doesn't exist in the first place. It should be also noted that the problem of privatisation in connection to human rights exists in international law too, with the most pivotal example being the alleged human rights violations of the 'private security firms' (i.e. mercenaries) that the American government contracted during the war in Iraq, as they are private companies they are not obliged to act in accordance of various international treaties such as the Geneva Convention6.
What we are witnessing here, in my humble opinion is, commercial law and socioeconomical principles stepping over fundamental human rights in the name of the free market... let us hope that at least in the case of the UK the parliament will find a way to close the legal gap that allows such injustices to take place, something that in my opinion judicial review cannot cover. Finally concerning the international law aspect of the problem, as the saying goes ' in a war, its the victor that writes the history' and the laws also...
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1 .The 1689 Bill of Rights
4. A great example of the current way of thinking of what constitutes a Public Authority in the UK can be found in the judgement of Poplar Housing and Regeneration Community Association v Donoghue [2001] EWCA civ 595
5. The Guardian
On another note here is a video of a rap battle between Hayek and Keynes for who has the better ideas for coming out of the current globalised depression... enjoy
