Judgments - Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire (Appellants) v Wallbank and another (Respondents)

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    31. If the only act of the PCC which was in issue in this case had been the service of the notice on Mr and Mrs Wallbank it would have difficult, in the light of what was decided in R v Lambert and R v Kansal, to say that that act, which was lawful at the time when the notice was served and was still lawful when the preliminary issue was decided by Ferris J at first instance, had become unlawful following the coming into effect of the Human Rights Act 1998. But the proceedings to give effect to that notice are still on foot. In this situation there is, in my opinion, no issue of retrospectivity. Mr and Mrs Wallbank do not need to rely on section 22(4). It is sufficient for their purpose to say that they wish to rely on their Convention right in the proceedings which the PCC are still taking against them with a view to having the notice enforced. This is something that they are entitled to do under section 7(1)(b).

    32. It should be emphasised that the situation which I have outlined avoids the problems which were discussed in R v Lambert and R v Kansal about extending section 22(4) to appeals. We are, of course, dealing in this case with an appeal against the decision of a court or tribunal: see section 7(6)(a). But the fact is that the appeal relates to a preliminary issue only. This means that the court has yet to reach the stage in these proceedings when effect can be given to the notice which the PCC have served. That still lies in the future. Section 7(6)(a) states that the expression "legal proceedings" in section 7(1)(b) includes "proceedings brought by or at the instigation of a public authority." The preliminary issue has been examined as part of these proceedings.

    33. The question whether the proceedings of which an examination of the preliminary issue forms part are "legal proceedings" as so defined brings me to the next issue, which is whether the PCC is a public authority for the purposes of section 6(1) of the Act.

The public authority issue

    (a) Introduction

    34. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. The expression "public authority" is not fully defined anywhere in the Human Rights Act 1998. What the Act does instead is to address itself to some particular issues. In all other respects the expression has been left to bear its ordinary meaning according to the context in which it is used. Section 6(3) provides:

    "In this section 'public authority' includes -

(a) a court or tribunal, and (b) 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." Section 6(5) provides:

    "In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private."

    35. It is clear from these provisions that, for the purposes of this Act, public authorities fall into two distinct types or categories. Courts and tribunals, which are expressly included in the definition, can perhaps be said to constitute a third category but they can be left on one side for present purposes. The first category comprises those persons or bodies which are obviously public or "standard" public authorities: Clayton and Tomlinson, The Law of Human Rights, (2000) para 5.08. They were referred to in the course of the argument as "core" public authorities. It appears to have been thought that no further description was needed as they obviously have the character of public authorities. In the Notes on Clauses which are quoted in Clayton and Tomlinson, para 5.06, it was explained that the legislation proceeds on the basis that some authorities are so obviously public authorities that it is not necessary to define them expressly. In other words, they are public authorities through and through. So section 6(5) does not apply to them. The second category comprises persons or bodies some of whose functions are of a public nature. They are described in Clayton and Tomlinson as "functional" public authorities and were referred to in the argument as "hybrid" public authorities. Section 6(5) applies to them, so in their case a distinction must be drawn between their public functions and the acts which they perform which are of a private nature.

    36. Skilfully drawn though these provisions are, they leave a great deal of open ground. There is room for doubt and for argument. It has been left to the courts to resolve these issues when they arise. It is plain that the Court of Appeal were being invited to enter into largely uncharted territory. As a result of their efforts we are better equipped as we set out on the same journey. We have the benefit of their decision and of the criticisms that have been made of it. We must now see where all this leads us. First, it is necessary to examine what they did.

    37. The Court of Appeal declined, rightly in my opinion, to look to Hansard for assistance: [2002] Ch 51, 61D, para 29. They rejected the argument that there was an ambiguity which brought this case within the scope of the limited exception which was described in Pepper v Hart [1993] AC 593. It is true that various attempts were made by ministers in both Houses to explain their approach to the application of the Bill to what it described as public authorities. That was understandable, as some concern was expressed about the implications of this aspect of the legislation. But it is not the ministers' words, uttered as they were on behalf of the executive, that must be referred to in order to understand what Parliament intended. It is the words used by Parliament that must be examined in order to understand and apply the legislation that it has enacted.

    38. The Court of Appeal were invited to hold that the test of what is a public authority for the purposes of section 6 was function-based. They rejected this proposition too. As Sir Andrew Morritt V-C delivering the judgment of the court pointed out, this may well be determinative as regards the "hybrid" class of public authorities as defined by section 6(3)(b). But it does not follow that it governs the principal category of "core" public authorities: [2002] Ch 51, 62B, para 33. In the following paragraph he said that for this reason the decided cases on the amenability of bodies to judicial review, while plainly relevant, will not necessarily be determinative of a body's membership either of the principal or hybrid class of public authority. He noted that the authorities on judicial review, as they now stand, draw a conceptual line between functions of public governance and functions of mutual governance. He said that there was no surviving element of mutuality or mutual governance as between the impropriator and the church in the lay rector's modern liability for chancel repairs.

    39. Sir Andrew Morritt V-C set out the conclusions of the Court of Appeal on the public authority issue at p 63C-E, para 35:

    "In our judgment it is inescapable, in these circumstances, that a PCC is a public authority. It is an authority in the sense that it possesses powers which private individuals do not possess to determine how others should act. Thus, in particular, its notice to repair has statutory force. It is public in the sense that it is created and empowered by law; that it forms part of the church by law established; and that its functions include the enforcement through the courts of a common law liability to maintain its chancels resting upon persons who need not be members of the church. If this were to be incorrect, the PCC would nevertheless, and for the same reasons, be a legal person whose functions, chancel repairs among them, are functions of a public nature. It follows on either basis by virtue of section 6 that its acts, to be lawful, must be compatible with the rights set out in Schedule 1 to the Human Rights Act 1998."

    40. The Court of Appeal, in reaching the conclusion that the PCC is a "core" public authority, appears to have proceeded in this way: (1) the PCC is an authority because it possesses powers which private individuals do not possess to enforce the lay rector's liability; and (2) it is public because it is created and empowered by law, it forms part of the Church of England as the established church and its functions include the enforcement of the liability on persons who need not be members of the church. By a similar process of reasoning the Court of Appeal concluded that the PCC is in any event a person some of whose functions, including chancel repairs, are functions of a public nature. In their view the fact that the PCC has the power and duty to enforce the obligation on persons with whom it has no other relationship showed that it has the character of a public authority, or at least that it is performing a function of a public nature when it is enforcing this liability: see also para 36.

    41. This approach has the obvious merit of concentrating on the words of the statute. The words "public" and "authority" in section 6(1), "functions of a public nature" in section 6(3)(b) and "private" in section 6(5) are, of course, important. The word "public" suggests that there some persons which may be described as authorities that are nevertheless private and not public. The word "authority" suggests that the person has regulatory or coercive powers given to it by statute or by the common law. The combination of these two words in the single unqualified phrase "public authority" suggests that it is the nature of the person itself, not the functions which it may perform, that is determinative. Section 6(1) does not distinguish between public and private functions. It assumes that everything that a "core" public authority does is a public function. It applies to everything that a person does in that capacity. This suggests that some care needs to be taken to limit this category to cases where it is clear that this over-arching treatment is appropriate. The phrase "functions of a public nature" in section 6(3), on the other hand, does not make that assumption. It requires a distinction to be drawn between functions which are public and those which are private. It has a much wider reach, and it is sensitive to the facts of each case. It is the function that the person is performing that is determinative of the question whether it is, for the purposes of that case, a "hybrid" public authority. The question whether section 6(5) applies to a particular act depends on the nature of the act which is in question in each case.

    42. The absence of a more precise definition of the expression "public authority" for the purposes of section 6(1) of the Human Rights Act 1998 may be contrasted with the way that expression is used in the devolution legislation for Scotland and Northern Ireland. Sections 88-90 of the Scotland Act 1998 deal with what that Act calls "cross-border public authorities". "Scottish public authorities" are dealt with in Part III of Schedule 5. Definitions of these expressions are provided in section 88(5), which requires "cross-border authorities" to be specified by Order in Council and in section 126(1) which states that "Scottish public authority" means any public body, public office or holder of such an office whose functions are exercisable only in or as regards Scotland. A list of public bodies was appended to the White Paper Scotland's Parliament (Cm 3658, 1997): see also the note to section 88 of the 1998 Act in Current Law Statutes. It included three nationalised industries, a group of tribunals, three statutory water authorities, health bodies and a large number of miscellaneous executive and advisory bodies. Sections 75 and 76 of the Northern Ireland Act 1998 impose a duty on public authorities to promote equality of opportunity and prohibit discrimination in the carrying out of their functions. The expression "public authority" for the purposes of each of these sections is defined in a way that appears to leave no room for doubt as to which departments, corporations or other bodies are included: see sections 75(3), 76(7).

    43. The Court of Appeal did not explore the significance of the distinction which is drawn in section 6 between "core" and "hybrid" public authorities. In their view the PCC, for the same reasons, fell into either category: p 63D-E, para 35. But the width that can be given to the "hybrid" category suggests that the purpose of the legislation would not be impeded if the scope to be given to the concept of a "core" public authority were to be narrowed considerably from that indicated by the Court of Appeal.

    44. There is one vital step that is missing from the Court of Appeal's analysis. It is not mentioned expressly in the Human Rights Act 1998, but it is crucial to a proper understanding of the balance which sections 6 to 9 of the Act seek to strike between the position of public authorities on the one hand and private persons on the other. The purpose of these sections is to provide a remedial structure in domestic law for the rights guaranteed by the Convention. It is the obligation of states which have ratified the Convention to secure to everyone within their jurisdiction the rights and freedoms which it protects: Young, James and Webster v United Kingdom (1981) 4 EHRR 38, 52, para 49. The source of this obligation is article 13. It was omitted from the articles mentioned in section 1(1) which defines the meaning of the expression "the Convention rights", as the purpose of sections 6 to 9 was to fulfil the obligation which it sets out. But it provides the background against which one must examine the scheme which these sections provide.

    45. The principle upon which the scheme proceeds is that actions by public authorities are unlawful if they are in breach of Convention rights: section 6(1). Effect is given to that principle in section 7. It enables anyone who is a victim of an act made unlawful by section 6(1) to obtain a remedy. The extent to which the scheme derives its inspiration from the Convention is revealed by the definition of the word "victim" which is set out in section 7(7). It provides:

    "For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act."

Article 34 of the Convention is in these terms:

    "The court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."

    46. The reference to non-governmental organisations in article 34 provides an important guide as to the nature of those persons who, for the purposes of section 6(1) of the Act and the remedial scheme which flows from it, are to be taken to be public authorities. Non-governmental organisations have the right of individual application to the European Court of Human Rights as victims if their Convention rights have been violated. If the scheme to give effect to article 13 is to be followed through, they must be entitled to obtain a remedy for a violation of their Convention rights under section 7 in respect of acts made unlawful by section 6.

    47. The test as to whether a person or body is or is not a "core" public authority for the purposes of section 6(1) is not capable of being defined precisely. But it can at least be said that a distinction should be drawn between those persons who, in Convention terms, are governmental organisations on the one hand and those who are non-governmental organisations on the other. A person who would be regarded as a non-governmental organisation within the meaning of article 34 ought not to be regarded as a "core" public authority for the purposes of section 6. That would deprive it of the rights enjoyed by the victims of acts which are incompatible with Convention rights that are made unlawful by section 6(1). Dawn Oliver, "The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act" [2000] PL 476, 491-493 has observed that this would have serious implications. It would undermine the protections against state control which are the hallmarks of a liberal democracy.

    48. In Rothenthurm Commune v Switzerland, Application No 13252/87, 14 December 1988 the Commission held that local government organisations such as the applicant commune which exercise public functions are clearly "governmental organisations" as opposed to "non-governmental organisations" within the meaning of article 25 (now article 34) of the Convention, with the result that the commune which was complaining that proceedings for the expropriation of land for a military training area were in breach of their rights under article 6(1) could not bring an application under that article. In Ayuntamiento de Mula v Spain, Application No 55346/00, 1 February 2001, the European Court held that under the settled case law of the Convention institutions local government organisations are public law bodies which perform official duties assigned to them by the Constitution and by substantive law and are therefore quite clearly governmental organisations. It added this comment:

    "In that connection, the Court reiterates that in international law the expression 'governmental organisations' cannot be held to refer only to the Government or the central organs of the State. When powers are distributed along decentralised lines, it refers to any national authority which exercises public functions."

    49. The phrase "public functions" in this context is thus clearly linked to the functions and powers, whether centralised or distributed, of government. This point was developed more fully in Holy Monasteries v Greece (1995) 20 EHRR 1. The Government of Greece argued that the applicant monasteries, which were challenging legislation which provided for the transfer of a large part of the monastic property to the Greek State, were not non-governmental organisations within the meaning of article 25 (now 34) of the Convention. It was pointed out that the monasteries were hierarchically integrated into the organic structure of the Greek Orthodox Church, that legal personality was attributed to the Church and its constituent parts in public law and that the Church and its institutions, which played a direct and active part in public administration, took administrative decisions whose lawfulness was subject to judicial review by the Supreme Administrative court like those of any other public authority. Rejecting this argument, the court said at p 41, para 49:

    "Like the Commission in its admissibility decision, the Court notes at the outset that the applicant monasteries do not exercise governmental powers. Section 39(1) of the Charter of the Greek Church describes the monasteries as ascetic religious institutions. Their objectives - essentially ecclesiastical and spiritual ones, but also cultural and social ones in some cases - are not such as to enable them to be classed with governmental organisations established for public administration purposes. From the classification as public law entities it may be inferred only that the legislature - on account of the special links between the monasteries and the State - wished to afford them the same legal protection vis-à-vis third parties as was accorded to other public law entities. Furthermore, the monastery councils' only power consists in making rules concerning the organisation and furtherance of spiritual life and the internal administration of each monastery."

    50. The phrase "governmental organisations established for public administration purposes" in the third sentence of the passage which I have quoted from the Holy Monasteries case is significant. It indicates that test of whether a person or body is a "non-governmental organisations" within the meaning of article 34 of the Convention is whether it was established with a view to public administration as part of the process of government. That too was the approach which was taken by the Commission in Hautanemi v Sweden (1996) 22 EHRR CD 156. At the relevant time the Church of Sweden and its member parishes were to be regarded as corporations of public law in the domestic legal order. It was held nevertheless that the applicant parish was a victim within the meaning of what was then article 25, on the ground that the Church and its member parishes could not be considered to have been exercising governmental powers and the parish was a non-governmental organisation.

    51. It can be seen from what was said in these cases that the Convention institutions have developed their own jurisprudence as to the meaning which is to be given to the expression "non-governmental organisation" in article 34. We must take that jurisprudence into account in determining any question which has arisen in connection with a Convention right: Human Rights Act 1998, section 2(1).

    52. The Court of Appeal left this jurisprudence out of account. They looked instead for guidance to cases about the amenability of bodies to judicial review, although they recognised that they were not necessarily determinative: p 62D-E, para 34. But, as Professor Oliver has pointed out in her commentary on the decision of the Court of Appeal in this case, "Chancel repairs and the Human Rights Act" [2001] PL 651, the decided cases on the amenability of bodies to judicial review have been made for purposes which have nothing to do with the liability of the state in international law. They cannot be regarded as determinative of a body's membership of the class of "core" public authorities: see also Grosz, Beatson, Duffy, Human Rights: The 1998 Act and the European Convention (2000), p 61, para 4-04. Nor can they be regarded as determinative of the question whether a body falls within the "hybrid" class. That is not to say that the case law on judicial review may not provide some assistance as to what does, and what does not, constitute a "function of a public nature" within the meaning of section 6(3)(b). It may well be helpful. But the domestic case law must be examined in the light of the jurisprudence of the Strasbourg Court as to those bodies which engage the responsibility of the State for the purposes of the Convention.

    53. At first sight there is a close link between the question whether a person is a non-governmental organisation for the purposes of article 34 and the question whether a person is a public authority against which the doctrine of the direct effect of directives operates under Community law: see article 249 EC. Both concepts lie at the heart of the obligations of the State under international law. Individual applications for a violation of Convention rights may be received under article 34 from "any person, non-governmental organisation or group of individuals". Direct effect exists only against the member state concerned "and other public authorities": ECSC v Faillite Acciaierie e ferriere Busseni SpA [1990] ECR I-495, para 23; Brent, Directives: Rights and Remedies in English and Community Law (2001), para 15.11.

    54. The types of organisations and bodies against whom the provisions of a directive could be relied on were discussed in Foster v British Gas Plc [1990] ECR I-3313. The court noted in para 18 that it had been held in a series of cases that provisions of a directive could be relied on against organisations and bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals. Reference was made to a number of its decisions to illustrate this point. Its conclusions were set out in para 20:

    "It follows from the foregoing that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon."

    55. This is a broad definition of the concept by which such bodies have come to be referred to as "emanations of the State": eg Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, para 56. It has been described as a starting point: Doughty v Rolls-Royce Plc [1992] CMLR 1045, 1058, per Mustill LJ. As Brent, para 15.11, note 101, points out, the phrase "emanation of the State" is an English legal concept derived from Gilbert v Corporation of Trinity House [1886] 17 QBD 795 which was later criticised by the courts as inappropriate and undefined. Whatever its value may be in the context of Community law, however, it would be neither safe nor helpful to use this concept as a short-hand way of describing the test that must be applied to determine whether a person or body is a non-governmental organisation for the purposes of article 34 of the Convention. There is no right of individual application to the European Court of Justice in EC law. The phrase "non-governmental organisation" has an autonomous meaning in Convention law.

(b) Is the PCC a public authority?

    56. The general functions and powers of parochial church councils in the Church of England are set out in the Parochial Church Councils (Powers) Measure 1956. That was a measure passed by the National Assembly of the Church of England under the powers which were conferred on the National Assembly by the Church of England Assembly (Powers) Act 1919. The National Assembly was renamed and reconstituted as the General Synod of the Church of England by the Synodical Government Measure 1969. Section 7 of the 1969 Measure provides that the rules contained in Schedule 3, which may be cited as the Church Representation Rules, are to have effect for the purpose of providing for the constitution and proceedings of diocesan and deanery synods and making further provision for the synodical government of the church. Part II of the Church Representation Rules provides for the holding of annual parochial church meetings at which parochial representatives of the laity to the parochial church council and the deanery synod are to take place. Rule 14 sets out the membership of the parochial church council. It includes the clergy, churchwardens, any persons on the roll of the parish who are members of any deanery or diocesan synod or the General Synod, elected representatives of the laity and co-opted members.

    57. Section 2(1) of the Parochial Church Councils (Powers) Measure 1956 provides that it shall be the duty of the minister, as defined in rule 44(1) of the Church Representation Rules, and the parochial church council to consult together on matters of general concern and importance to the parish. Section 2(2) states that the functions of parochial church councils shall include, among other things, co-operation with the minister in promoting in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical and the consideration and discussion of matters concerning the Church of England or any other matters of religious or public interest other than the declaration of the doctrine of the Church on any question. Among the powers, duties and liabilities vested in parochial church councils by section 4 are those relating to the financial affairs of the church and the care, maintenance and preservation of its fabric. Section 2 of the Chancel Repairs Act 1932 provides that, where a chancel is in need of repair, proceedings to enforce the liability to repair are to be taken by the responsible authority. Section 4(1) of the Act provides that the expression "responsible authority" in relation to a chancel means the parochial church council of the parish in which the chancel is situate.

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