Aston Cantlow...Parochial Church Council v Wallbank and another  UKHL 37,  3 All ER 1213
LORD NICHOLLS OF BIRKENHEAD:....
 The expression 'public authority' is not defined in the Human Rights Act, nor is it a recognised term of art in English law, that is, an expression with a specific recognised meaning. The word 'public' is a term of uncertain import, used with many different shades of meaning: public policy, public rights of way, public property, public authority (in the Public Authorities Protection Act 1893), public nuisance, public house, public school, public company. So in the present case the statutory context is all important. As to that, the broad purpose sought to be achieved by s 6(1) is not in doubt. The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatibly with convention rights. If they act in breach of this legal obligation victims may henceforth obtain redress from the courts of this country. In future victims should not need to travel to Strasbourg.
 Conformably with this purpose, the phrase 'a public authority' in s 6(1) is essentially a reference to a body whose nature is governmental in a broad sense of that expression. It is in respect of organisations of this nature that the government is answerable under the convention. Hence, under the Human Rights Act a body of this nature is required to act compatibly with convention rights in everything it does. The most obvious examples are government departments, local authorities, the police and the armed forces. Behind the instinctive classification of these organisations as bodies whose nature is governmental lie factors such as the possession of special powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest, and a statutory constitution....
 A further, general point should be noted. One consequence of being a 'core' public authority, namely, an authority falling within s 6 without reference to s 6(3), is that the body in question does not itself enjoy convention rights. It is difficult to see how a core public authority could ever claim to be a victim of an infringement of convention rights. A core public authority seems inherently incapable of satisfying the convention description of a victim: 'any person, non-governmental organisation or group of individuals' (see art 34; my emphasis). Only victims of an unlawful act may bring proceedings under s 7 of the Human Rights Act, and the convention description of a victim has been incorporated into the Act, by s 7(7). This feature, that a core public authority is incapable of having convention rights of its own, is a matter to be borne in mind when considering whether or not a particular body is a core public authority. In itself this feature throws some light on how the expression 'public authority' should be understood and applied. It must always be relevant to consider whether Parliament can have intended that the body in question should have no convention rights.
 In a modern developed state governmental functions extend far beyond maintenance of law and order and defence of the realm. Further, the manner in which wide-ranging governmental functions are discharged varies considerably. In the interests of efficiency and economy, and for other reasons, functions of a governmental nature are frequently discharged by non-governmental bodies. Sometimes this will be a consequence of privatisation, sometimes not. One obvious example is the running of prisons by commercial organisations. Another is the discharge of regulatory functions by organisations in the private sector, for instance, the Law Society. Section 6(3)(b) gathers this type of case into the embrace of s 6 by including within the phrase 'public authority' any person whose functions include 'functions of a public nature'. This extension of the expression 'public authority' does not apply to a person if the nature of the act in question is 'private'.
 Again, the statute does not amplify what the expression 'public' and its counterpart 'private' mean in this context. But, here also, given the statutory context already mentioned and the repetition of the description 'public', essentially the contrast being drawn is between functions of a governmental nature and functions, or acts, which are not of that nature. I stress, however, that this is no more than a useful guide. The phrase used in the Act is public function, not governmental function.
 Unlike a core public authority, a 'hybrid' public authority, exercising both public functions and non-public functions, is not absolutely disabled from having convention rights. A hybrid public authority is not a public authority in respect of an act of a private nature. Here again, as with s 6(1), this feature throws some light on the approach to be adopted when interpreting s 6(3)(b). Giving a generously wide scope to the expression 'public function' in s 6(3)(b) will further the statutory aim of promoting the observance of human rights values without depriving the bodies in question of the ability themselves to rely on convention rights when necessary.
 What, then, is the touchstone to be used in deciding whether a function is public for this purpose? Clearly there is no single test of universal application. There cannot be, given the diverse nature of governmental functions and the variety of means by which these functions are discharged today. Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.
 Turning to the facts in the present case, I do not think PCCs are 'core' public authorities. Historically the Church of England has discharged an important and influential role in the life of this country. As the established Church it still has special links with central government. But the Church of England remains essentially a religious organisation. This is so even though some of the emanations of the Church discharge functions which may qualify as governmental. Church schools and the conduct of marriage services are two instances. The legislative powers of the General Synod of the Church of England are another. This should not be regarded as infecting the Church of England as a whole, or its emanations in general, with the character of a governmental organisation.
 As to PCCs, their constitution and functions lend no support to the view that they should be characterised as governmental organisations or, more precisely, in the language of the statute, public authorities. PCCs are established as corporate bodies under a Church measure, now the Parochial Church Councils (Powers) Measure 1956. For historical reasons this unique form of legislation, having the same force as a statute, is the way the Church of England governs its affairs. But the essential role of a PCC is to provide a formal means, prescribed by the Church of England, whereby ex officio and elected members of the local church promote the mission of the Church and discharge financial responsibilities in respect of their own parish church, including responsibilities regarding maintenance of the fabric of the building. This smacks of a Church body engaged in self-governance and promotion of its affairs. This is far removed from the type of body whose acts engage the responsibility of the state under the convention.
 The contrary conclusion, that the Church authorities in general and PCCs in particular are 'core' public authorities, would mean these bodies are not capable of being victims within the meaning of the Human Rights Act. Accordingly they are not able to complain of infringements of convention rights. That would be an extraordinary conclusion. The Human Rights Act goes out of its way, in s 13, to single out for express mention the exercise by religious organisations of the convention right of freedom of thought, conscience and religion. One would expect that these and other convention rights would be enjoyed by the Church of England as much as other religious bodies.
 I turn next to consider whether a PCC is a hybrid public authority. For this purpose it is not necessary to analyse each of the functions of a PCC and see if any of them is a public function. What matters is whether the particular act done by the PCC of which complaint is made is a private act as contrasted with the discharge of a public function. The impugned act is enforcement of Mr and Mrs Wallbank's liability, as lay rectors, for the repair of the chancel of the church of St John the Baptist at Aston Cantlow. As I see it, the only respect in which there is any 'public' involvement is that parishioners have certain rights to attend church services and in respect of marriage and burial services. To that extent the state of repair of the church building may be said to affect rights of the public. But I do not think this suffices to characterise actions taken by the PCC for the repair of the church as 'public'. If a PCC enters into a contract with a builder for the repair of the chancel arch, that could be hardly be described as a public act. Likewise when a PCC enforces, in accordance with the provisions of the Chancel Repairs Act 1932, a burdensome incident attached to the ownership of certain pieces of land: there is nothing particularly 'public' about this. This is no more a public act than is the enforcement of a restrictive covenant of which Church land has the benefit.
 For these reasons this appeal succeeds. A PCC is not a core public authority, nor does it become such by virtue of s 6(3)(b) when enforcing a lay rector's liability for chancel repairs. Accordingly the Human Rights Act affords lay rectors no relief from their liabilities...
.... [F]or 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: see Clayton and Tomlinson The Law of Human Rights (2000) pp 189 (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 p 188 (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 s 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.
 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....
 The Court of Appeal were invited to hold that the test of what is a public authority for the purposes of s 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 s 6(3)(b). But it does not follow that it governs the principal category of 'core' public authorities ( 3 All ER 393 at ). 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.
 Sir Andrew Morritt V-C set out the conclusions of the Court of Appeal on the public authority issue (at ):
'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 certain of whose functions, chancel repairs among them, are functions of a public nature. It follows on either basis by virtue of s 6 that its acts, to be lawful, must be compatible with the rights set out in Sch 1 to the [Human Rights Act 1998].'
 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  3 All ER 393 at ).
 This approach has the obvious merit of concentrating on the words of the statute. The words 'public' and 'authority' in s 6(1), 'functions of a public nature' in s 6(3)(b) and 'private' in s 6(5) are, of course, important. The word 'public' suggests that there are 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 overarching treatment is appropriate. The phrase 'functions of a public nature' in s 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 s 6(5) applies to a particular act depends on the nature of the act which is in question in each case.....
 The Court of Appeal did not explore the significance of the distinction which is drawn in s 6 between 'core' and 'hybrid' public authorities. In their view the PCC, for the same reasons, fell into either category (see  3 All ER 393 at ). 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.
 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, but it is crucial to a proper understanding of the balance which ss 6-9 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: see Young v UK (1981) 4 EHRR 38 at 52 (para 49). The source of this obligation is art 13. It was omitted from the articles mentioned in s 1(1) which defines the meaning of the expression 'the Convention rights', as the purpose of ss 6-9 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.
 The principle upon which the scheme proceeds is that actions by public authorities are unlawful if they are in breach of convention rights: see s 6(1). Effect is given to that principle in s 7. It enables anyone who is a victim of an act made unlawful by s 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 s 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.'
 The reference to non-governmental organisations in art 34 provides an important guide as to the nature of those persons who, for the purposes of s 6(1) of the Human Rights 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 art 13 is to be followed through, they must be entitled to obtain a remedy for a violation of their convention rights under s 7 in respect of acts made unlawful by s 6.
 The test as to whether a person or body is or is not a 'core' public authority for the purposes of s 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 art 34 ought not to be regarded as a 'core' public authority for the purposes of s 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 s 6(1).....
 The Church of England as a whole has no legal status or personality. There is no Act of Parliament that purports to establish it as the Church of England: Sir Lewis Dibdin Establishment in England: Essays on Church and State (1932) p 111. What establishment in law means is that the state has incorporated its law into the law of the realm as a branch of its general law.....
The Church of England is identified with the state in other ways, the monarch being head of each: see Norman Doe The Legal Framework of the Church of England (1996) p 9. It has regulatory functions within its own sphere, but it cannot be said to be part of government. The state has not surrendered or delegated any of its functions or powers to the Church. None of the functions that the Church of England performs would have to be performed in its place by the state if the Church were to abdicate its responsibility: see R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex p Wachmann  2 All ER 249 at 254,  1 WLR 1036 at 1042 per Simon Brown J. The relationship which the state has with the Church of England is one of recognition, not of the devolution to it of any of the powers or functions of government.
 The decisions of the Strasbourg court in Holy Monasteries v Greece (1995) 20 EHRR 1 and Hautanemi v Sweden (1996) 22 EHRR CD 155 support this approach. It is also worth noting that, while the two main churches in Germany (Roman Catholic and Lutheran) have public legal personality and are public authorities bound by the provisions of art 19(4) of the German constitution (Grundgesetz) or Basic Law which guarantees recourse to the court should any person's basic rights be violated by public authority, they are in general considered to be 'non-governmental organisations' within the meaning of art 34 of the convention. As such, they are entitled to avail themselves of, for example, the right to protection of property under art 1 of the First Protocol: Frowein and Peukert Kommentar zur Europaishen Menschenrechtskonvention (2nd edn, 1996) art 25, para 16. Maunz and Durig Kommentar zum Grundgesetz (looseleaf) art 33, para 38 explain the position in this way:
Church officeholders do not exercise sovereign power so long as they are not acting by virtue of state empowerment (for example, in matters concerning church taxes); the churches do not, even though they have public law status, form an integral part of the organisation of the state.
This reflects the view of the German Constitutional Court in its 1965 decision (BVerfGE 18, 385) that measures taken by a church relating to purely internal matters which do not reach out into the sphere of the state do not constitute acts of sovereign power. The churches are not, as we would put it, 'core' public authorities although they may be regarded as 'hybrid' public authorities for certain purposes.
 For these reasons I would hold that the PCC is not a 'core' public authority. As for the question whether it is a 'hybrid' public authority, I would prefer not to deal with it in the abstract. The answer must depend on the facts of each case. The issue with which your Lordships are concerned in this case relates to the functions of the PCC in the enforcement of a liability to effect repairs to the chancel. Section 6(5) of the Human Rights Act provides that a person is not a public authority by virtue only of sub-s (3) if the nature of the act which is alleged to be unlawful is private. The Court of Appeal said that the function of chancel repairs is of a public nature ( 3 All ER 393 at ). But the liability of the lay rector to repair the chancel is a burden which arises as a matter of private law from the ownership of glebe land.
LORD HOBHOUSE OF WOODBOROUGH:...
 The Human Rights Act and s 6 do not contain any complete or general definition of the term 'a public authority'. Section 6 does however contain a secondary definition in sub-ss (3)(b) and (5) as including, in respect of acts which are not of a private nature, persons (or bodies) certain of whose functions are functions of a public nature. This secondary category has been described as 'hybrid' public authorities. It requires a twofold assessment, first of the body's functions, and secondly of the particular act in question. The body must be one of which at least some, but not all, of its functions are of a public nature. This leaves what by inference from sub-s (3)(b) is the primary category, ie a person or body all of whose functions are of a public nature. This category has conveniently been called by the commentators a 'core' public authority. For this category, there is no second requirement; the section potentially applies to everything that they do regardless of whether it is an act of a private or public nature.
 Is a PCC a 'core' public authority? The answer I would give to this question is that it is clearly not. Its functions, as identified above from the relevant statutory provisions, clearly include matters which are concerned only with the pastoral and organisational concerns of the diocese and the congregation of believers in the parish. It acts in the sectional not the public interest. The most that can be said is that it is a creature of a Church measure having the force of a statute-but that is not suggested to be conclusive-and that some aspects of the Church of England which is the 'established Church' are of wider general interest and not of importance to the congregation alone. Thus the priest ministering in the parish may have responsibilities that are certainly not public, such as the supervision of the liturgies used or advising about doctrine, but may have other responsibilities which are of a public nature, such as a responsibility for marriages and burials and the keeping of registers. But the PCC itself does not have such public responsibilities nor are its functions public; it is essentially a domestic religious body. The fact that the Church of England is the established Church of England may mean that various bodies within that Church may as a result perform public functions. But it does not follow that PCCs themselves perform any such functions. Even the monasteries of the established Church in Greece, which has strong legal links with the state, such as the presence of representatives of the state on its governing body and direct financial links with the state, has been held not to be an emanation of the state for the purposes of the convention: see Holy Monasteries v Greece (1995) 20 EHRR 1.
 The Court of Appeal reached a different conclusion. I do not find their reasoning satisfactory. Neither Parliamentary material nor references to the law of judicial review assist on this question. The relevant underlying principles are to be found in human rights law not in Community law nor in the administrative law of England and Wales. The Strasbourg jurisprudence has already been deployed in the opinion of my noble and learned friend Lord Hope of Craighead and I need not repeat it. The relevant concept is the opposition of the 'victim' and a 'governmental body'. The former can make a complaint; the latter can only be the object of a complaint. The difference between them is that the latter has a governmental character and discharges governmental functions. If there is a need to find additional assistance in construing s 6 of the Human Rights Act, this is where it is to be found. The structure of the Act also supports the same conclusion. It is through s 7 and its reference to victims in s 7(1) and (7) that one gets from s 22(4) to s 6(1). Section 7 is drafted having regard to the Strasbourg jurisprudence; it would be inconsistent to construe s 6 in a manner opposed to that jurisprudence. The Court of Appeal's approach cannot be supported.
 In my opinion it has not been established that PCCs in general nor this PCC in particular perform any function of a public or governmental nature. If it is to be said that they do, I am unaware what specifically it can be said is that function. The Court of Appeal ( 3 All ER at ) said that the recovery of money under s 2 of the 1932 Act was the function which made the PCC a public authority. This is to be contrasted with the statement (at ) that the 'power and, no doubt duty' to do so is a 'common law' power. The nature of the person's functions are not to be confused with the nature of the act complained of, as s 6 makes clear. But in neither case are they governmental in nature nor is the body itself inherently governmental. It follows that in my opinion the PCC was neither a 'core' nor a 'hybrid' public authority. On that basis the defence of Mr and Mrs Wallbank must fail.
 But, if I am wrong, and the PCC was a 'hybrid' public authority, the further question arises under s 6(5): is the nature of the relevant act private? The act is the enforcement of a civil liability. The liability is one which arises under private law and which is enforceable by the PCC as a civil debt by virtue of the 1932 Act. The 1932 Act did not alter the pre-existing law as to the obligations of lay impropriators. It is simply remedial (as the Court of Appeal recognised at ). Its purpose is to enable repairs to be done which the lay rector ought to have, but has not, himself carried out. It is argued that it is akin to a power of taxation. Whether or not it was once true in the sixteenth century that such a power existed, it was certainly not true in the twentieth century. Whatever the former obligations of lay impropriators may once have been, by the eighteenth century they were or had been converted into civil obligations. In the present case this occurred in 1743 as a result of an inclosure award made under a private Act of Parliament of 1742 entitled: 'An Act for Dividing and Inclosing, Setting out and Allotting, certain Common Fields and Inclosures within the Manor and Parish of Aston Cantlow, in the County of Warwick.' In return for financial and proprietorial advantages then conferred upon them, the impropriators accepted the obligation to repair the chancel as and when the need arose. That is the private law obligation which is being enforced in the present action using the remedy provided in the 1932 Act.