Meaning of “public authority”
35.The phrase “public authority” is not exhaustively defined by section 6 and so is to be given its ordinary meaning. The courts have considered in a number of cases the meaning of the phrase “public authority” in the analogous section 6 of the Human Rights Act 1998. Subsection (5)(a) does provide some particular examples of public authorities, with subsections (6) to (8) then providing additional information, in relation to persons mentioned in subsection (5)(a)(iii), as to when functions are of a public nature.
36.Subsection (5)(b) makes provision in relation to the Scottish Parliament, which is specifically excluded from the definition of “public authority” and therefore the compatibility duty. Persons carrying out functions in connection with proceedings in the Scottish Parliament are also excluded from the definition. (But see section 21 (reporting duty on the Scottish Parliament)).
37.By virtue of the definition of “relevant function” in subsection (2), some public authorities will be subject to the section 6 compatibility duty when exercising certain functions and not when exercising other functions. For example, where some of a public authority’s functions relate to reserved matters, those functions are not subject to the compatibility duty by virtue of subsection (2)(a). Similarly, where some of a public authority’s functions are (for example) conferred by an Act of the UK Parliament and some by an Act of the Scottish Parliament, the public authority is only subject to the compatibility duty when acting in relation to functions conferred by the Act of the Scottish Parliament.
