In this respect, this essay will argue that aside from the HRA's failure to properly incorporate the Convention rights; a more crucial failure is the fact that it leaves courts hesitant to apply the legislation due to the vague guidelines given under section 3 of the Act.
As previously mentioned, the HRA is meant to give guarantees to the rights and freedoms embodied in the convention. Among its effects, the Act renders it "unlawful for a public authority to act in a way which is incompatible with a Convention right."4 In addition, it also obliges courts to "[s]o far as possible to do so"5, ensure that "primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights"6 and in instances where it is not possible, to "make a declaration of that incompatibility"7. Since the Act came into effect, however, the HRA's significance in successfully protecting the rights and freedoms embodied in the Convention has been limited by the two aforementioned provisions.
First, with regard to the obligation posed on authorities under section 6, case law has exhibited difficulties in determining whether or not the person in question of violating the Convention under the HRA is a 'public authority', aptly defined or not. Under section 6, public authorities are defined as "a court or tribunal" or "any person certain of whose functions are functions of a public nature." 8 In this respect, the definition of public authority is imperative because in cases where violations of human rights occurred, individuals can only be awarded damages against public authorities. As defined by the act, damages refer to "damages for an unlawful act of a public authority".9 The definition of public authority is therefore a crucial aspect of enforcing the law, and applying it in courts. However, difficulty lies in determining whether a person has functions that are of public nature and whether public authorities are operating under private transactions.
In the case of Poplar Housing and Regeneration Community Association Ltd v Donoghue  QB 48, 67, a private body was deemed to be performing public functions, and hence liable under section 6 of the Act.10 In this respect, the case was considered a landmark in case law regarding the definition of public authority, because it called for "a generous interpretation of who is a public authority".11 As a result, the definition of the term achieved what Lord Irvine indicated as a need for an extended and "wide-ranging definition of public authority", in order to extend the liabilities under the HRA "to provide as much protection as possible for the rights of the individual against the misuse of power by the state" preserving parliamentary sovereignty.12 However, the changing nature of government functions, as well as the growing partnership between public and private organizations has rendered this already difficult task more complex. In this respect, Lord Nicholls illustrates this in Aston Cantlow v Wallbank  1 AC 546, stating that:
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.