Tag Archives: Public-Private Divide

Cormac Mac Amhlaigh: Once More Unto the (Public/Private) Breach …: s. 6 of the Human Rights Act 1998 and the Severability Thesis

cormacTwo interesting recent blog posts dealt with the meaning of public and private under  s. 6 of the Human Rights Act 1998.  They were motivated by injunction proceedings in the High court whereby the Olympic Delivery Authority, (ODA) the body charged with the logistics and infrastructure of the London Olympic Games, had sought injunctions to restrain protestors from entering and occupying land which was to be developed as part of the Olympic site.  The main issues emerging from this case discussed in the two posts was whether the ODA constituted a ‘core’ or ‘hybrid’ public authority under s. 6 HRA; whether it could itself enjoy human rights to defeat or counter any human rights obligations it may hold in its capacity as a ‘hybrid’ body exercising public functions; and where the ‘centre of gravity’ for determining the human rights obligations of hybrid bodies lay under the Act; under the  s. 6(3)(b) ‘public function’ test or the definition of ‘private act’ under s. 6(5).

In this post, I wish to contribute to the discussion on the third point by highlighting a common essentialist fallacy in approaches to the meaning of ‘public’ under the HRA which leads to circular, question-begging conclusions.  This essentialist fallacy is problematic on its own terms but also has a bearing on the relationship between s. 6(3)(b) HRA and s. 6(5) HRA.  Avoiding the essentialist fallacy requires reading the term ‘private acts’ under s. 6(5) within the context of public functions under s. 6(3)(b) and as such, the post concludes that s. 6(5) cannot stand alone as a ground for determining the human rights obligations, or immunities, of hybrid bodies.

The Severability Thesis

Perhaps the main point of disagreement between the two previous posters on this topic was the question of the relationship between s. 6(3)(b) and s. 6(5) HRA.  As is well known, s. 6 creates a legal obligation on public authorities to act compatibly with the rights contained in the ECHR, and s. 6(3)(b) extends the meaning of public authority to ‘any person  certain of whose functions are functions of a public nature’.  s. 6(5) furthermore states that ‘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’.  This has resulted in a classification of two types of body which are subject to human rights obligations under the act:  ‘core’ and ‘hybrid’ bodies. (See Lord Nichols, para.11 in Aston Cantlow PCC v. Wallbank [2003] UKHL 37).  Defining the human rights liabilities of hybrid bodies, moreover, raises the question of what can be called a ‘severability thesis’; that is, whether s. 6(5) is severable from s. 6(3)(b) such that it constitutes a separate head of analysis for determining the human rights liabilities of particular hybrid bodies.   If it is not severable, s. 6(5) simply serves to compliment an analysis of the functions of hybrid bodies by simply reinforcing the ‘hybridity’ of the body in order to distinguish it for ‘core public authorities’.  As such, the notion of ‘private acts’ under s. 6(5) is assimilated into a broader analysis of the ‘publicness’ of the functions of a hybrid body under s. 6(3)(b).    If the two provisions are severable, then a two-stage test to assess the human rights liabilities of hybrid bodies is necessarily; firstly to determine whether the hybrid body undertakes ‘functions of a public nature’ and then a further analysis to determine the ‘privateness’ of the act which was taken pursuant to the public function.    Moreover, as well as adding another limb to the test of the human rights liabilities of hybrid bodies, the severability thesis also, significantly, shifts the ‘centre of gravity’ on the human rights liabilities of hybrid bodies from s. 6(3)(b) and the definition of ‘public functions’, to s. 6(5) and the definition of private ‘acts’, where s. 6(5) and not s. 6(3)(b) provides the ultimate litmus test to determine the human rights liabilities of these bodies.  On this analysis, even if a hybrid body is not deemed to be discharging a public function under s. 6(3)(b), it can still be caught if it is found that the nature of the act which caused the alleged human rights violation was public and vice versa.

The severability thesis was a significant point of disagreement between the two previous posters.   David Mead seemed persuaded by the severability thesis, claiming that s. 6(5) can be read narrowly to warrant an independent analysis on the question of the ‘privateness’ of the act which is separate from ,and can defeat, the analysis for ‘public function’ under s. 6(3)(b) relying on statements from the Court of Appeal in Weaver in support.    Alexander Williams, on the other hand, explicitly refuted the severability thesis, arguing that the centre of gravity of the human rights liabilities of hybrid bodies lies with s. 6(3)(b) and not s. 6(5).  Evidence of this, he argues, can be found both in the failed attempt by Elias LJ in Weaver to apply the two-stage test implicit in the severability thesis, as well as Parliament’s intention in drafting the provision.

Beyond the blogosphere, the severability thesis has gained some traction from the bench, not least from one of the leading cases on s. 6; YL v. Birmingham City Council.  In this case, Lord Scott, for example, argued that:

“[t]he effect of [s. 6 HRA] is that an act (or an omission) of a private person or company that is incompatible with a Convention right is not unlawful under the 1998 Act … unless the person or company has at least some “functions of a public nature”; but even if that condition is satisfied the private person or company will not have any liability under the 1998 Act if the nature of the act complained of was private.” (para. 23, Emphasis Added).

  In the same case, Lord Neuberger found that :

“In my view, both as a matter of ordinary language and on a fair reading of [s. 6], there is a difference between “functions”, the word used in s. 6(3)(b) and “act[s]”, the word used in section 6(2) and (5) […].  The former has a more conceptual, and perhaps less specific, meaning than the latter.  A number of different acts can be involved in the performance of a single function.  So, if this appeal succeeds, a proprietor … would be performing a “function”, which, while “of a public nature”, would involve a multitude of acts, many of which would be private … a hybrid public authority is only bound by section 6(1) in relation to an act which is (a) is not private in nature and (b) is pursuant to or in connection with a function which is public in nature.” (para.  129, Emphasis Added)

The two-stage test to determine the liabilities of ‘hybrid bodies’ is clear from this latter judicial endorsement of the severability thesis; firstly it must be ascertained whether the function being discharged was a ‘public’ one within the meaning of s. 6(3)(b), and secondly, it must be determined that the impugned act which gave rise to the alleged human rights violation was not private.  Furthermore, this two-stage test, as Lord Neuberger noted, requires a distinction between functions and acts.  This means, as Elias LJ noted in Weaver, that:

“ …  Not all acts concerned with carrying out a public function will be public acts.  Conversely, it is also logically possible for an act not to be private act notwithstanding that the function with which it is most closely connected is a private function, although it is difficult to envisage such as case.  Such situations are likely to be extremely rare.” (para. 28).

In the remainder of this post I will join the side of those arguing against the severability thesis by showing how it relies on a problematic essentialist fallacy which is best avoided.

The essentialist fallacy

            The essentialist fallacy relates to the notion that concepts such as ‘public functions’ or ‘private acts’  have some natural referent in the real world betraying certain essential properties which automatically determines their public or private character.  That is that whether something  (e.g. a relationship, an act, function etc.) is to be deemed public or private relates to the ‘essential nature’ of the thing itself which is in some sense self-evident.  The fallacy was alluded to, albeit obliquely, by Lord Neuberger in YL when he noted that:

            “Any reasoned decision as to the meaning of s. 6(3)(b) risks falling foul of circularity, preconception, and arbitrariness. The centrally relevant words, “functions of a public nature”, are so imprecise in their meaning that one searches for a policy as an aid to interpretation.  The identification of the policy is almost inevitably governed, at least to some extent, by one’s notions of what that policy should be, and the policy so identified is then used to justify one’s conclusion.” (para. 128).

 As I have argued elsewhere, it affects other areas of the HRA, however for current purposes I will focus on its expression with respect to the question of the relationship between s. 6(3)(b) and s. 6(5) HRA.   In Aston Cantlow, in determining the potential human rights liabilities of a Parochial Church Council suing landowners for the cost of repairs of the chancel of a local parish church, several of the bench fell foul of the essentialist fallacy with respect to question of the nature of the acts which constituted the alleged human rights violation.  Having considered the functions of the Parochial Church Council, for example, Lord Hope argued that the nature of the act was that of ‘seeking to enforce a civil debt’ (para 64) which was a ‘matter of private law’ (para. 71).  In the same decision, Lord Hobhouse found that the act in question was  ‘the enforcement of a civil liability’  (para. 89).  Such liability, moreover, was one which ‘arises under private law and which is enforceable by the PCC as a civil debt’. (para. 89).  These considerations were part of the basis of the finding that the act in question was a private one which contributed to the finding that the PCC did not hold human rights obligations under s. 6.   Similarly in YL, Lord Scott, looking at the nature of the act which gave rise to the litigation against a privately owned and run care home by a resident who was being evicted, argued that:

 “the service of a notice terminating the agreement under which YL was contractually entitled to remain in the care home, the notice was served in purported reliance on a contractual provision in a private law agreement.  It affected no one but the parties to the agreement.  I do not see how its nature could be thought to be anything other than private.”  (para. 34).

  In the same case, Lord Neuberger found that:

“[t]he liability of Southern Cross to provide Mrs. YL with care and accommodation in the present case similarly “arises as a matter of private law“.  That is illustrated by the fact that Mrs. YL (or her relatives were) free to choose which care home she went into, and took advantage of that right by selecting a care home more expensive than Birmingham was prepared to pay for … the services provided in this case are very much of a personal nature, as well as arising pursuant to a private law contract between Southern Cross and Mrs. YL”  (para. 168).

In these examples, we can see essentialist fallacy at work.  For each of their Lordships,  the nature of the acts in question, namely the enforcement of a civil debt and a notice to terminate a contractual agreement, were governed by private law and therefore were, by implication, private acts within the meaning s .6(5).  There is therefore a loose and fluid equation of meanings of ‘privateness’ between different contexts. However no explanation or justification of what private law constitutes, nor how this matters for the determination of ‘private acts’ under s. 6(5) HRA is proffered.  It is presented as intuitive or somehow ‘self-evident’.  This is problematic as, it leads, as Lord Neuberger himself acknowledged, to circularity.  To claim, as their Lordships have done, that the enforcement of a civil debt or the enforcement of a contractual provision is inherently private and therefore a ‘private act’ under s. 6(5) is simply to beg the question.  This circularity, moreover, runs the risk of subjectivity in determining ‘privateness’ under the Act as well as, perhaps more problematically, as Neuberger noted, arbitrariness.

It could, of course, be argued that it is relatively common knowledge that contracts between private parties involving the purchase of land or a tenancy agreement are examples of private acts par excellence given that they form the core of what most people would consider private law as a field of law.  Therefore we can reason by analogy that they would fall under the definition of ‘private acts’ under s. 6(5).   However, this reasoning by analogy is not unproblematic.  Firstly, resistance to the classification of   the enforcement of a civil debt for chancel repairs as a naturally and inherently private act came from within the court itself in  Aston Cantlow.   Lord Scott, for example, argued that ‘chancel repair obligations’ in the case had an ‘unmistakable public law flavor to them’. (para. 131)  Secondly, privateness, including privateness in the law, is neither natural nor self-evident but is necessarily context dependent.  Sometimes even prima facie naturally or intuitively private branches of law such as property law can be public.  A good example of this is the US Supreme Court Case of Shelly v. Kramer (334 U.S. 1 (1948)) where the Court found that the enforcement of a racially discriminatory restrictive covenant over land – surely the most intuitively private branch of law; property law – was considered to be a public act in the form of a ‘state action’ given the fact that, in the final analysis, it was ultimately enforced by a Court, which can (and indeed in the HRA is) considered a public authority.  On this logic, then, all private law can conceptually enjoy a public character given that it will ultimately be enforced by a public body, a court.  Thus the essentialist fallacy erroneously assumes an ‘essence’ of publicness or privateness in the law which is imminently contestable.

The essentialist fallacy also conflicts with the ‘sui generis’ nature of publicness and privateness under s. 6.   Academic commentary and the Courts themselves have warned against the importation of conceptions of publicness or privateness from other areas of law into the HRA in order to determine the human rights liabilities of core and hybrid  bodies under the act.  For example,  Lord Nicholls in Aston Cantlow noted  that:

“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 section 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 incompatible with Convention rights.”  (para. 6, Emphasis Added).

There are numerous other admonitions, both judicial and academic, against importing conceptions of the ‘public’ from, for example, bodies subject to judicial review, ‘emanations of the state’ under EU law, The Race Relations Act 1976 or the Freedom of Information Act 2000, in order to determine the concept under s. 6 HRA.  (See generally, D. Oliver, ‘The Frontiers of the State:  Public Authorities and Public Functions Under the Human Rights Act’ (2004) Public Law, 476.) This has to do with specific purposes of the HRA itself; to ensure the enforcement of human rights ‘at home’ rather than at Strasbourg.  If this is the case, then, importing ‘naturalistic’ understandings of ‘privateness’ from personal intuition or political preference, or from designations of publicness or privateness with different taxonomic or pedagogical purposes, is particularly problematic.

So what has all of this to do with the severability thesis and the relationship between s. 6(3)(b) and s. 6(5) HRA which was the subject of the dispute between the two previous posters?  Well, if it is the case that the essentialist fallacy is to be avoided, and it is argued that there are many good reasons why it should be, we should be sensitive to the contextual nature of ‘publicness’ and ‘privateness’ under s. 6 HRA.  Avoiding the essentialist fallacy, therefore, requires recognizing that the meaning of ‘publicness’ and ‘privateness’, as Lord Nicholls above suggested, is context-dependent. These terms have no independent meaning outside of the specific legal context within which they appear. Against this backdrop, the relevant context which can give meaning to the term ‘private acts’ under s. 6(5) is that of the public function under s. 6(3)(b) pursuant to which the particular (putatively private) act was taken.  The nature of the act itself under s. 6(5), given that it is not inherently public or private, will always be conditioned by the function which governed the act.  Thus, as Elias LJ himself discovered in Weaver when attempting to apply the severability thesis, s. 6(3)(b) and s. 6(5) are relational such that the finding of a public function under the former will have a bearing on ‘privateness’ of the act under the latter. In this sense, they are two sides of the same coin.

 Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh and a visiting Fellow at the Faculty of Law, University of Copenhagen.

   

Suggested citation: C. Mac Amhlaigh,  ‘Once More Unto the (Public/Private) Breach …:  s. 6 of the Human Rights Act 1998 and the Severability Thesis’   UK Const. L. Blog (13th December 2013) (available at http://ukconstitutionallaw.org)

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Philip Murray: Natural Justice at the Boundaries of Public Law

PhilipThe intention of this post is a simple one: to assess the ways in which natural justice arguments have historically been raised in private law proceedings. By “natural justice” I mean those common law principles requiring a fair procedure and an unbiased tribunal when powers are exercised. Ordinarily, of course, natural justice arguments arise in judicial review proceedings against public bodies in the Administrative Court or Upper Tribunal, usually when those bodies are exercising a statutory power. But to what extent can it be argued that a private body, in its private relations with private individuals, has acted unlawfully by making decisions in a procedurally unfair manner?

Initial clarity

Until around the late 1920s, the law was pretty clear on when natural justice principles could be invoked in private law proceedings. An important distinction was made between proceedings in equity and proceedings at common law. In equitable proceedings for a declaration or injunction, natural justice principles could be invoked when the plaintiff wished to challenge the exercise of trust powers and other fiduciary powers. At common law, the action would invariably be brought for damages, although from 1883 a declaration could also be sought. Natural justice arguments at common law would arise primarily on the basis of a breach of contract, normally with some sort of implied term being read into the contractual relationship between the plaintiff and defendant requiring certain principles of natural justice to be followed. Natural justice arguments would occasionally arise in proceedings founded on the tort of conspiracy, too, though the limited circumstances in which conduct amounting to conspiracy could be established minimised reliance on this tort.

With regard to proceedings in equity, it is clear that there need not be a contractual relationship between the parties for natural justice arguments to be invoked. The rules of natural justice were conceptualised as freestanding equitable principles governing the exercise of powers. This can be seen most clearly in the case of Dawkins v Antrobus (1881) 17 ChD 615. In that case, the plaintiff had been expelled from the Travellers’ Club under a rule of the club that allowed a majority of members to expel a member who conducted himself in a manner that brought the club into disrepute. The plaintiff challenged his expulsion in the Chancery Division, seeking an injunction and declaration on the ground that insufficient notice of the charge made against him had been given. These arguments were not the primary concern of Sir George Jessel MR at first instance, but they were considered in detail in the Court of Appeal. The judgment of Brett LJ is especially clear in setting out when natural justice principles could be invoked. Brett LJ envisaged three ways in which the decision of the club members to expel the plaintiff could be looked at: (i) to see whether they had acted in accordance with the rules of the club; (ii) to see whether those rules themselves complied with the requirements of natural justice; and (iii) to see whether their conduct, though within the four corners of the rules properly interpreted, could nonetheless be described as mala fide (at 630). More importantly, natural justice arguments would not just be relevant in the second type of challenge. Even if the rules accepted amongst the members of the club were, in principle, compatible with the rules of natural justice, natural justice principles could also be invoked when considering whether the members’ conduct was bona fide. In particular, Brett LJ said that “there would be a denial of natural justice if a decision was come to without [the plaintiff] having an opportunity of being heard” (630, see also Cotton LJ at 634 and 636).

The possibility of seeking an injunction or declaration in equity for breach of freestanding principles of natural justice thus coincided with, but was conceptually distinct to, the possibility of bringing an action at common law for damages on the basis of some express or implied term in a contract between the parties. These were two distinct areas of case law: the conceptual bases of the natural justice principles (“equity”/“contract”) and the remedies that were available (injunction and declaration / damages and declaration) were very different.

Blurring the lines

The clear picture outlined above came to be muddied in the middle decades of the twentieth century. In a series of cases the courts came to emphasise the necessity of a contract in all private law proceedings in which natural justice principles were invoked, regardless of whether those proceedings were for damages (or, more frequently, a declaration) at common law or for an injunction or declaration in equity.

The case law started to become confused in Maclean v The Workers’ Union [1929] 1 Ch 602. In that case, Maugham J, sitting in the Chancery Division, emphasised that where a contract between the parties set out procedural rules governing the parties’ exercise of their powers, then the courts could not invoke standalone natural justice requirements to supplement the rules the parties had themselves agreed (at 623-625).

The approach in Maclean still preserved the possibility of invoking freestanding natural justice principles in (very rare) cases where there was no form of contractual agreement between the parties. However, the effect of Maugham J’s decision was to make natural justice principles subservient to, and subject to ouster by, contractual agreements. This approach might have been justifiable on the basis of freedom of contract: private parties should be free to dispense with any procedural protections the law would ordinarily impose on their dealings, if that is their intention. But given the sort of body against whom these private law natural justice claims were being brought – bodies like trade unions and sporting regulators, who exercised, through contract, some sort of de facto monopolistic control over less powerful individuals – there was always a degree of artificiality in such reasoning.

Nonetheless, the law’s preference for a contractual approach to natural justice continued to dominate. The highpoint in this came in Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762. An injunction and declaration were sought in the Chancery Division against the decision of the defendant, a limited company established to protect film distributors, that its members should no longer supply films to the plaintiff’s cinemas. It was argued that this decision was made on the basis of an unfair procedure. It was accepted by the plaintiff at trial that there was no contract between himself and the defendant. Nonetheless, it was argued that natural justice arguments could be invoked in proceedings in equity. This argument was rejected by Harman J who said, “the existence of some contract is essential”. The possibility of introducing natural justice principles in equity where there was no contract between the parties was thus emphatically rejected.

Beyond contract

The problem with the exclusively contract-based approach to natural justice arguments, as established in Byrne, was that contracts between private individuals seldom set out elaborate requirements of fair procedure to govern the relationships of the parties to the contract. The possibility of bringing an action for breach of an express term was, therefore, practically non-existent. Actions based on implied terms requiring fair procedures were equally fraught with difficulty. The criteria under which the law allowed for the implication of contractual terms meant that such terms would be implied rarely: it would be unusual for the extensive requirements of natural justice to satisfy the “officious bystander” or “business efficacy” tests. The role of natural justice arguments outside the judicial review process was thus much restricted by Maugham J’s judgment in Byrne.

The limitations of the law of contract fuelled two important dissenting judgments of Denning LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 and Abbott v Sullivan [1952] 1 KB 189, both in the Court of Appeal. Both of these cases involved actions for breach of contract. Yet in both cases Denning LJ objected to the limited, contract-focussed approach the majority judges took when addressing natural justice arguments. Denning LJ, manipulating the boundaries of law and equity, called for a generous reliance on the principles of natural justice across the law, basing his approach on Dawkins v Antrobus.

Eventually Lord Denning was given the opportunity of vindicating this approach in the important case of Nagle v Feilden [1966] 2 QB 633. A decision of the Jockey Club to refuse the plaintiff a horse trainer’s licence simply on the grounds of her gender was challenged on the basis that it was against public policy, and thus unreasonable. Because this was a case where the plaintiff had applied for a licence, rather than one where the plaintiff was deprived of a licence she already had (cf. Russell v Duke of Norfolk), it could not be said that there was any contract between the parties through which “public law” principles like natural justice or unreasonableness could be mediated. However, while Lord Denning MR accepted that a contract had to be alleged where a claim was brought for damages for breach of contract, he expressly said that principles of natural justice, unreasonableness, and so on could be invoked irrespective of contract where a declaration was sought. Looking back over the previous case law, he saw the invocation of contracts as often being “fictitious” (646). The true ground in these cases, he said, was “a man’s right to work”: that right could be protected by the law, independent of any implied term in a contract.

Lord Denning MR affirmed his approach five years later in Enderby Town FC Ltd v Football Association Ltd [1971] 1 Ch 591. That case, and Nagle v Feilden, were accepted by Megarry V-C in McInnes v Onslow-Fane [1978] 1 WLR 1520 – an ordinary private law claim for an injunction – as establishing that courts are “entitled to intervene in order to enforce the appropriate requirements of natural justice and fairness” (1528), even where, as in McInnes itself, there was no contract between the parties.

The modern law

Nagle v Feilden and McInnes v Onslow-Fane thus recognised the continued possibility of invoking natural justice arguments in private law proceedings even where no express or implied contractual term bound the parties to respect those principles. While Hoffmann LJ, obiter, doubted the correctness of Nagle v Feilden in R v Jockey Club, ex parte Aga-Khan [1993] 1 WLR 909 (at 933), the non-contractual basis of natural justice principles outside the judicial review process has nonetheless continued to be recognised in the subsequent case law. In Modahl v British Athletic Federation Ltd (No 2) [2002] 1 WLR 1192, Latham LJ expressly recognised the continued applicability of the Nagle v Feilden approach. This was re-affirmed at first instance in Bradley v Jockey Club [2004] EWHC 2164 (QB) (per Richards J at [35]). As Jonathan Morgan has recognised in his excellent survey of the modern case law and its application to sports governing bodies, the approach in Nagle v Feilden is still to be regarded as “good law” (Morgan, “A mare’s nest? The Jockey Club and judicial review of sports governing bodies” [2012] LIM 102, at 106).

All of this as a useful reminder to both public and private lawyers that public law principles have life outside the strict confines of the judicial review process. Yet given the importance of the possibility of natural justice arguments being raised outside judicial review, it is unfortunate that the circumstances in which they might be introduced are still so ambiguous.

A number of important question marks still hang over this area of the law. In particular, a question remains as to the scope of the principle in Nagle v Feilden. In Bradley v Jockey Club, for example, a question was raised as to whether the Nagle v Feilden approach should be considered as one instance of the common law doctrine against unreasonable restraints of trade, or whether it had a broader application in line with the approach taken in equity, as typified by Dawkins v Antrobus. At first instance, Richards J noted that a number of cases decided after ex parte Aga Khan had rationalised Nagle v Feilden on a restraint of trade basis (see Stevenage Borough FC Ltd v Football League (1996) 9 Admin LR 109, Newport Association FC Ltd v Football Association of Wales Ltd [1995] 2 All ER 87, and Mondahl (No. 2)). Indeed, such an analysis would be at one with Denning LJ’s emphasis of a common law “right to work” in that case, though we might see this “right” as simply one of the many common law principles that engage and shape the broader application of the rules of natural justice. Richards J refused to settle this point exactly in Bradley: he said that it was “unnecessary to get caught up in the subtleties” (para [35]) and that it was sufficient to note that “even in the absence of contract the court has a settled jurisdiction to grant declarations and injunctions in respect of decisions of domestic tribunals that affect a person’s right to work”. If we can see Nagle v Feilden as a natural successor to the line of cases exemplified by Dawkins v Antrobus, then the case allows for a ready reliance on natural justice principles outside judicial review. If, however, it is to be conceptualised simply as an aspect of the restraint of trade doctrine, its scope is much more limited.

There are other questions, too. What of the comments in earlier cases, like Maclean, that the non-contractual approach to natural justice arguments can only be relied on in the absence of any contract setting out procedural requirements? This approach was not emphatically dealt with in Nagle v Feilden, Bradley, and other cases. Indeed, in cases where the contractual route is preferred (where, for example, a claimant is seeking damages), in what circumstances, if at all, will it be proper to imply contractual terms requiring the principles of natural justice to be respected?

The potential of this area of law to develop as a dynamic corollary to judicial review is great, and its significance ought not to be underestimated. The on-going ambiguity is, however, regrettable. It is hoped that the courts will clarify the law in this area one day soon.

Philip Murray is a Fellow of St John’s College, Cambridge, and can be followed on Twitter: @DrPhilipMurray.

 Suggested citation: P. Murray, ‘Natural Justice at the Boundaries of Public Law ‘  UK Const. L. Blog (21st November 2013) (available at http://ukconstitutionallaw.org).

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Alexander Williams: The Scope of Section 6 HRA Revisited

AlexwilliamssmallAs David Mead remarks his recent UKCLG blog post on the scope of the Human Rights Act, there is ‘much more than meets the eye’ to the HRA’s hybrid public authority scheme. It is not just about the meaning of the term ‘functions of a public nature’ under s 6(3)(b). Hugely important though this issue is, its well-documented intractability may have obscured deeper issues relating to the inherent mechanics of the scheme itself. Two such issues are the meaning and scope of the notion of a private act under s 6(5) and the rights-status of hybrid public authorities when performing public as opposed to private functions. They are important not just in their own right but also as potential clues to the proper interpretation of s 6(3)(b). As I have argued elsewhere (at [2011] PL 139), it is difficult to see how judges could ever determine the scope of that provision correctly without first being clear as to how the scheme of liability it triggers actually works, and what it does to the defendants to which it applies.

Using the recent ruling of Arnold J in Olympic Delivery Authority v Persons Unknown [2012] EWCA 1012 (Ch) as a springboard, Mead offers some thoughts on each of the s 6(5) and rights-status issues. In this post I offer my own. My end point is agreement with his basic contention that Arnold J was mistaken to believe that the Olympic Delivery Authority (the ODA) enjoyed Convention rights of its own in that case. But our thinking on each point differs somewhat, as will be seen.

In ODA, in which the ODA successfully sought an injunction to prevent trespassers from unlawfully obstructing agents and contractors from entering land earmarked for Olympic development, Arnold J believed himself bound (at [24]) to balance the protesters’ rights under Arts 10 and 11 ECHR with ODA’s right to respect for property under Art 1 FP. Evidently, his Lordship therefore assumed that the ODA could not have been a ‘core’ public authority under s 6 HRA. These, of course, are obviously public bodies such as government departments, the NHS and the armed forces, all of whose activities are caught by the Convention. To be a rights-holder one must be a ‘victim’ under s 7(1) HRA, which in turn requires one to be a ‘person, non-governmental organisation or group of individuals’ under Art 34 ECHR (see s 7(7)). It is clear beyond doubt from the ruling of the House of Lords in Aston Cantlow PCC v Wallbank [2003] UKHL 37 that core public authorities, being inherently governmental, can never satisfy the victim test. This is rooted in Strasbourg’s idea that Art 34 envisages a binary, institutional distinction between the individual and the state, with the result that governmental organisations are permanently precluded from filing their own Convention claims, even if they happen to be doing so in relation to activities that would straightforwardly be regarded as private (see e.g. Ayuntamiento de Mula v Spain App no 55346/00 (ECtHR, 1 February 2001)). The idea has been criticised (by Howard Davis, at [2005] CLJ 315), but it remains the law.

Mead’s criticism of ODA is not based on the argument, easy enough to make, that the ODA is indeed a core public authority. Core public authorities are ‘selfless’ bodies created and controlled to serve the public interest over their own: see my earlier work at [2011] PL 139, 148-150. They differ fundamentally from ‘selfish’ institutionally non-state bodies, who are constitutionally allowed their own interests and motivations, whether as human beings, charities, or profit-making organisations, and who can therefore do as they wish – as Laws J emphasised in R v Somerset County Council, ex p Fewings [1995] 1 All ER 513, 524 – within the confines of the law. This is evident from what has been said about core public authorities academically (by Dawn Oliver, at [2000] PL 476), and judicially (in Aston Cantlow, which drew from Oliver’s work), and also from the scope of the governmental organisation concept in Strasbourg to which the core public authority concept equates. It is clear that core public authority status would apply to the ODA, which was established under s 3 of the Olympic and Paralympic Games Act 2006 and invested with the power ‘to take any action it thinks necessary or expedient’ in order to prepare, or to make or ensure that arrangements are made for the preparation of, the London Olympics (see s 4). In exercising its functions the ODA must obey any directions given by the Secretary of State (Sch 1, para 18(1)(b)), who appoints its members and chairman following consultation with the Mayor of London (Sch 1, para 1(1)). Despite its formal status under s 3(1) as a body corporate, the ODA is evidently not a constitutionally selfish private organisation. That it must exercise its functions with regard to ‘the desirability of maximising the benefits to be derived after the London Olympics from things done in preparation for them’ (s 4(3)(a)), for instance, is a further indicator of the public-interest purpose for which it was created and is so closely central government-controlled. The ODA’s status as a core public authority is the real reason it lacks Convention rights of its own.

Mead’s criticism of ODA rests on a different argument. Seemingly troubled by the idea that the ODA might absolutely lack Convention rights as a core public authority, he appears to favour the view that it is a hybrid public authority instead: that is, a private body performing a public function under s 6(3)(b). He argues that the flaw in the judgment was Arnold J’s approach to s 6(5), however, which he claims was misconceived or at least inadequately reasoned. Section 6(5) provides that ‘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.’ The effect, Mead reasons, is to necessitate a clear analysis of the nature of the ODA’s act when filing for an injunction: if private, then the ODA falls to be treated in that capacity like any other private individual, i.e. as enjoying its own Convention rights. Indeed, he says, this would mean that there could be no obligation on it to respect the protesters’ Convention rights either, because it would not be a hybrid public authority at all. But if the act is public, so the argument goes, then the ODA’s public-authority status remains, with the result that it loses its own Convention rights. Mead therefore envisages an all-or-nothing distinction between being a hybrid public authority and enjoying Convention rights oneself: ‘Arnold J must be wrong to assert that the rights of both [claimant and defendant] are in play – it can only be one or the other, surely?’

I begin with the rights-status issue, giving my views on the s 6(5) point below. I have argued before (at [2011] PL 139) that hybrid public authorities do not lose Convention protection when acting in their public capacities. It is possible in a given case for a hybrid both to be attacked under the Convention and to defend itself using its own Convention rights. The issue has never been judicially resolved, as Mead observes, and a handful of commentators – notably Buxton LJ, in YL v Birmingham City Council [2007] EWCA Civ 26, at [75] – have previously assumed that hybrid public authorities do indeed lack Convention protection when engaging in public activity. But under the HRA as presently drafted there is nevertheless a right answer. Whether a person can assert Convention rights under the HRA turns, as seen above, on whether Strasbourg would regard that person as a victim under Art 34 ECHR were a claim to be brought before the ECtHR in respect of the same act. What the issue therefore boils down to is the interpretation of the Strasbourg case-law on the meaning of Art 34. If a hybrid public authority is a governmental organisation under Art 34 and therefore not a victim in Strasbourg’s eyes when behaving publically, then it loses Convention protection under s 7 HRA. But if it is a victim under Art 34, then it follows that it must enjoy its own Convention rights domestically. This is apparent not just from Parliament’s clear intention to tie the standing questions under s 7 and Art 34 together, but also from the potentially very serious discrimination issue that would arise if we denied rights protection against Strasbourg’s wishes to hybrid public authorities acting in their public capacities. In Art 14 ECHR terms, it represents a classic example of denying Convention rights according to a person’s status in the domestic system. It is not a million miles, to borrow from some familiar examples, from denying Convention protection to those with red hair – or to fishing companies without the requisite number of British directors. Parliament could of course defy Strasbourg by legislating expressly for rights-stripping if it wished. But in the absence of any such move, the conclusion is irresistible: hybrid public authorities will enjoy Convention rights in their public capacities under the HRA if this is what would occur in Strasbourg under Art 34. Although I spare readers a lengthy re-rehearsal of my reasons for thinking that this would indeed occur (these can be found at [2011] PL 139, 145-154), it is certainly worth reiterating the point made above, that Strasbourg has constructed a rigid and binary institutional divide between governmental and non-governmental bodies under Art 34. A body is either governmental in nature – constitutionally ‘selfless’ – or it is not. Under no circumstances will its Art 34 status change according to the nature of the activity it performs. Governmental organisations are governmental through and through; private organisations are private through and through, and therefore enjoy Convention protection at all times. So the point I am making on the rights-status issue is this: s 6(5) is irrelevant to the capacity of a hybrid public authority to enforce its own Convention rights. If the ODA were a hybrid public authority, which I have argued anyway is not the case, then it would be entitled to its rights in whichever capacity it acted. Whether it performed public functions or was otherwise engaged in public activity when seeking to enforce those rights is not the issue.

This leads neatly, then, to the s 6(5) question – more specifically, of how the concept of a private act relates to that of a public function under s 6(3)(b). This question is by far the thornier, not helped by the absence of any ministerial comment at all on the concept of a private act as the HRA passed through Parliament. Earlier cases such as Poplar Housing v Donoghue [2001] EWCA Civ 595 tended to ignore the functions-acts distinction altogether. Ruling that a government-created registered social landlord was a hybrid public authority when providing accommodation to a tenant whom the landlord later sought to evict, the Court of Appeal (at [65]) listed a number of factors relevant to its conclusion – but made no effort whatsoever to explain whether these bore on the nature of the landlord’s function under s 6(3)(b) or its act under s 6(5). Later cases saw something of a judicial awakening in this respect, with a growing appreciation that the hybrid public authority question actually involves a two-stage test of both the function and the act (see Lord Hobhouse in Aston Cantlow and Lords Scott and Neuberger in YL v Birmingham City Council [2007] UKHL 27), but this only brought the perplexing conceptual question of how ‘functions’ and ‘acts’ differ to the fore. The Court of Appeal’s ruling in R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587, which concerned the status under s 6 of a registered social landlord that in contrast to Poplar had not been created by government, is an interesting case in point. It is a glorious illustration of how easy it is in this context to become engulfed by a trap with a black hole-like capacity to swallow up virtually all trace of rationality and common sense. The trap’s unsuspecting victim was Elias LJ, who seized on the functions-acts distinction and reasoned that s 6(5), not s 6(3)(b), is effectively the operative provision when it comes to determining whether a particular hybrid public authority is bound in a given instance to respect Convention rights (at [28]). Since s 6(5) has the last word on the body’s liability, and since s 6(3)(b) says nothing of which of a hybrid’s functions must be public, his Lordship took the view that Parliament really only intended to cast s 6(3)(b) in a cameo role: as long as one of a body’s functions is public, then all that matters is the nature of the act complained of under s 6(5). If this act is public, then Convention challenge against the body can lie, regardless of whether the function pursuant to which the act is performed is public or private in nature. What we have under this approach, then, is an apparent broadening of s 6(3)(b): a hybrid body with a single public function on its books could theoretically perform a private function towards the complainant but nevertheless face Convention liability because under the all-important s 6(5) it performed a public act. The effort to open up s 6(3)(b) in this way, if that was indeed the intention, is laudable enough. I am not the only author to have argued (at [2008] EHRLR 524) that the courts’ treatment of s 6(3)(b) is probably too narrow, after all. The approach has moreover been suggested before (by Jonny Landau, at [2007] PL 630). But with the greatest respect to those who are tempted by it, the approach is seriously flawed. The idea that a public act could be performed pursuant to a private function is highly dubious in any event, as Lord Collins MR observed (at [101]). Elias LJ admitted himself (at [28]) that ‘Such situations are likely to be extremely rare.’ One might argue that with a clearer impression in mind of the functions-acts distinction the approach does become tenable, but this is where Weaver becomes even more puzzling. Joined by Lord Collins (at [102]), Elias LJ took the view (at [76]) that the nature of the act under s 6(5) strongly depends upon that of the function pursuant to which it is performed anyway. Acts that are ‘so bound up with’ a public function, he believed, would be public acts. So having showered s 6(5) in roses as the real star of the s 6 show, and having admonished (at [53]) the Divisional Court for failing at first instance to spot its Hollywood potential, his Lordship was in any event forced down the very same road trodden by judges in previous cases – of having to determine the nature of the function in question, around which everything else hinges. Having concluded that the function of allocating and managing housing stock was public, Elias LJ then ruled that the act of evicting the tenant was public as well. Even if the approach is theoretically viable, therefore, it gets the courts nowhere in practice. There is no escaping the need to determine the nature of the particular function performed towards the claimant in the case at hand. Indeed, it was disagreement over the nature of the function that split the court two to one, with Rix LJ dissenting.

The foregoing, I think, exposes three things about the meaning of s 6(5). First, it attests to the sheer difficulty of attempting to pin down the abstract distinction between functions and acts. The only real judicial guidance to have been given on the functions-acts distinction is by Lord Neuberger in YL (at [130]), that ‘functions’ are less specific than ‘acts’ and that various acts may be done in the performance of a particular function, but this is probably as precise, realistically, as it could get. Second, it emphasises that s 6(3)(b) retains the lead role – even if, as I mentioned at the start of this post, it is not the only issue worth worrying about in the hybrid public authority context. This follows not just from the difficulties seen in Weaver of trying to depart from this idea, but also from the very idea of a test that assigns public status to a body according to the function that it performs. A functional categorisation like this is alien to the institutionally-focussed governmental organisation jurisprudence in Strasbourg, as I argued above, so there will be no useful steer on the acts-functions distinction from here. The same is true of the meaning of a public function for the purposes of amenability to judicial review, which constitutes the only domestic body of case-law to provide any potential guidance to the courts on which functions are public and therefore attract legal duties, like Convention obligations, that apply primarily to the state. This is a tricky area in its own right and its link to s 6(3)(b) is equally unclear. I have my own views on both issues, but here is not the place to detail them. The point is that the amenability test itself may be functionally focussed, but there is no similar functions-acts distinction here either, so the courts are unassisted by this body of law as well. Clearly s 6(5) is designed to cut down the scope of hybrid public authority liability by reference to the nature of the particular act complained of, but quite how Parliament intended this to happen is manifestly unclear. All of this militates against reading s 6 in a way that renders s 6(5) the protagonist. There is no substitute for a more precise definition of a public function, difficult though it is to define, which should be able to do the vast majority of the work of determining when a private organisation should be a hybrid liable to Convention challenge and when it should not. Third, and finally, I think the foregoing suggests that in terms of the meaning of a private act under s 6(5), Elias LJ and Lord Collins were probably correct. Although Elias LJ’s specific idea that a public act could flow from a private function is difficult to swallow, the basic idea that an act should ordinarily take the same nature as its parent function is sensible. It strikes a fair balance between giving s 6(5) some sort of role by recognising a basic functions-acts distinction, on the one hand, and bogging the courts down in an artificial, complex and technical assessment of the precise distinction between public functions and public acts, on the other. On this approach, s 6(5) would only come into play if the defendant hybrid could cast real doubt over the idea that the act complained of did in fact result from – was ‘so bound up with’ – the particular public function in question. This might be because the act was more naturally seen as resulting from a private function, or perhaps because in reality it was simply a one-off act with no parent function at all. Not all acts, of course, will have parent functions: what is the function pursuant to which a fight in the street takes place, for example? To-double lock this more minor role for s 6(5), too, the courts would obviously have to treat defendants’ attempts to make use of that provision cautiously. It should not be open to a hybrid public authority care home, for instance, to wriggle too easily out of Convention liability by claiming that the abuse by nursing staff of residents fell outside of the public function of providing care and accommodation and was therefore a private act under s 6(5). The need to avoid simply emptying out the content of s 6(3)(b) is an important reason to ensure that it plays a proper role relative to that played by s 6(5).

Dr Alexander Williams is a Lecturer in Law and Co-Director of the Human Rights Centre at the University of Durham.

Suggested citation: A. Williams, ‘The Scope of Section 6 HRA Revisited’  UK Const. L. Blog (28th October 2013) (available at http://ukconstitutionallaw.org)

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Greg Weeks: What to do about private bodies with public functions?: Australia’s continued ambivalence to the Datafin principle.

A few weeks ago, two judges of the Australian High Court (French CJ and Bell J) heard an application for special leave to appeal from the decision of the Full Court of the South Australian Supreme Court in Khuu & Lee Pty Limited v Corporation of the City of Adelaide.  That in itself is not surprising, given the volume of special leave applications heard by the Court each year.  Nor was Khuu & Lee, on its face, a remarkable case, being a challenge to the City’s decision not to renew the plaintiff’s licence to run a stall at the Adelaide Central Market.  Indeed, we ought not really to be surprised that the Court’s decision to refuse special leave has all but gone unnoticed – especially with Australians involved in decisions of note elsewhere in the world.

Khuu & Lee is not remarkable but for the fact that it continues Australia’s angst-ridden history in relation to the Court of Appeal’s decision in R v Panel on Take-overs and Mergers; ex parte Datafin plc [1987] 1 QB 815.  Much has been written on Datafin in Australia and a great deal of it has focused on the steady refusal of the High Court to engage with arguments on Datafin.  This is seen as particularly problematic for four reasons:

 

1. There is but one common law of Australia

The High Court firmly reminded the various intermediate courts of appeal within Australia several years ago that “there is a common law of Australia rather than of each Australian jurisdiction”.  As a consequence, State Supreme Courts which are asked to apply Datafin are often uncertain as to whether they could, where the existing case law is inconsistent and the High Court’s opinion is unknown.

There had been a slowly building body of case law at State level, including the judgments in the NSW Supreme Court of Mathews J in Typing Centre of New South Wales v Toose  and Campbell J in McClelland v Burning Palms Surf Life Saving Club.  The Victorian Supreme Court’s Appeal Division decided State of Victoria v The Master Builders’ Association of Victoriausing Datafin but it was a single judge decision by Shaw J in the New South Wales Supreme Court which really sparked interest in Datafin outside academic circles.  In Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd, his Honour not only held that Datafin was part of Australian law but also purported to apply it against a private, industry-funded complaints service, which operated in the guise of a registered corporation.  This remains the only case in which an Australian court has granted a judicial review remedy by applying Datafin.

More recently in Chase Oyster Bar v Hamo Industries, Basten JA (one of Australia’s leading judicial minds, particularly on issues of administrative law) has cast doubt on both Masu and Master Builders, reasoning that neither decision “demonstrates the applicability of Datafin in Australia” and that to whatever extent Eames J had ‘applied’ Datafin in Master Builders, it was unnecessary to have done so.  The common law position could therefore be understood as being that the applicability of Datafin remained unsettled in Australia but the Victorian Supreme Court has retained a strong interest in considering it.  In CECA Institute, and also extra-judicially, Kyrou J has cast doubt upon some of Basten JA’s conclusions in Chase Oyster, stating that “no Australian decision had cast doubt on the applicability of Datafin in Australia” prior to Chase Oyster.  In Mickovski, Pagone J supported Kyrou J’s conclusion that “in the absence of High Court authority to the contrary, the decision in [Master Builders] was sufficient authority for the applicability of the Datafin principle in [Victoria]”.

In short, when Khuu & Lee was decided by the South Australian Full Court, the principle that there is but one Australian common law was looking decidedly shabby in regard to Datafin.  The High Court’s refusal to grant special leave has done nothing to ameliorate that situation.

 

2. The unhelpfulness of Australia’s statutory judicial review mechanism

The Administrative Decisions (Judicial Review) Act 1977 (Cth) was revolutionary at the time that it first took effect in 1980 and has been described as one of the great reforms in Australian law.  It has now, however, reached a point where many of its terms need revision, a conclusion shared by many Australian administrative lawyers from the academy and practice alike.  One of the provisions which is most commonly cited in support of this call for change is that the Federal Court is only able to conduct judicial review under ADJR of a decision of an administrative character made under an enactment.  This was crucial to the only High Court case to have mentioned Datafin.

NEAT Domestic Trading v AWB Ltdconsidered a statutory grant of monopoly power made for the purpose of exporting Australian wheat through a ‘single desk’.  The dealings of the Australian Wheat Board Ltd subsequently became notorious but this matter was simply about whether it was subject to judicial review under the ADJR Act for having exercised its statutory power to refuse permission to any other body seeking to export wheat.  The majority reasoned that, as a corporation incorporated under the Corporations Law of Victoria, AWB Ltd had no duty to anybody but its shareholders.  It was therefore not making decisions “under an enactment” but under the power inherent to bodies corporate.  Gleeson CJ reached the same conclusion but added that he considered that it was wrong to say that AWB Ltd was able to act for purely selfish reasons, since it held power that was to be used in the “national interest”.

In his dissent, Kirby J gave consideration to Datafin in the High Court (with the exception of a brief footnote reference in Kirby J’s judgment in Breckler).  With respect, his Honour’s attempt to force the principle from Datafin into the narrow language of the ADJR Act was doomed to fail, a view confirmed by later judicial consideration of the “under an enactment” requirement and academic consideration of NEAT.

Barring the unlikely event that the Administrative Review Council’s review of Judicial Review in Australia recommends sweeping changes to the ADJR Act which are then enacted by the hung Commonwealth Parliament, the ADJR will not provide a way out for people who wish to plead the Datafin principle.

 

3. Australia’s Constitutional constraints

The Australian Constitution provides the High Court with an entrenched minimum judicial review jurisdiction in s 75(v).  This jurisdiction is mirrored for the Federal Court under s 39B(1) of the Judiciary Act 1903 (Cth).  The problem that this causes for plaintiffs who want the court to apply Datafin is that relief under both provisions is limited to relief “sought against an officer or officers of the Commonwealth”.  Matthew Groves has recently considered this section with regards to outsourcing government responsibilities, such as operating detention centres for asylum seekers whose claims are unprocessed.

The problem is that the case which gives us the definition of “an officer of the Commonwealth”, R v Murray; ex parte Commonwealth, was decided in 1916.  When Isaacs J stated that the meaning of “officer” was uncomplicated, that it was simply one who held an “office” under the Commonwealth, frequently remunerated by the payment of a salary, his Honour would not have dreamed of the many tasks that are now outsourced by government to private actors.  NEAT was only brought as an ADJR case because it would not have succeeded under s 39B.

I do not suppose that the High Court means for this to cause the steady decline of the promise of judicial review in s 75(v); it surely regards judicial review as pertaining to the exercise of public power rather than only to exercises of power whose source is public.  It is simply – and understandably – reluctant to broaden the scope of a Constitutional term, particularly where to do so would risk conflict with established private law principles.  This was an issue which concerned the South Australian Full Court in Khuu & Lee.

 

4. The Relevance of Datafin’sFacts

There can be no doubt that Datafin was a creature of its time.  It is almost unimaginable for a contemporary Australian audience that there could be a body which wielded a “giant’s strength” but which had “no visible means of legal support” – or, one assumes, constraint.  Certainly, the Australian Takeovers Panel is constructed on very different lines.

And there’s the rub: it is fatuous to look for a set of facts to which Datafin will apply.  Twenty-five years after the Court of Appeal’s decision, there has not been an Australian case which is on all fours with Datafin.  This is not a problem in itself; after all, Wednesbury unreasonableness is very much a part of Australian law, though almost never applied.  The problem is rather that, while some judges have been prepared to push the nature of precedent further than others to apply it, Datafin is better seen as having started a conversation rather than opened a door, in the manner of cases like Donoghue v Stevenson or Woolwich Equitable Building Society v IRC.

If there is to be a broader application of the principle behind Datafin in Australia, there are two basic requirements.  The first is that the federal bars to jurisdiction be removed, either by statutory amendment of ADJR and s 39B, or by the High Court re-evaluating the meaning of “officer of the Commonwealth”, or both.  The second is that the High Court sets a precedent which is capable of being followed by State Supreme Courts.

 

Greg Weeks is a Lecturer in Law at the University of New South Wales

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Aileen McHarg: Public Law, Private Law and the Distinctiveness of Scots Judicial Review

Scottish judges and textbook writers are fond of asserting the distinctive nature of judicial review in Scotland compared with England.  According to Clyde and Edward, for example, (Judicial Review, 2000, ch 2), the basis for judicial review in Scotland is a more generalised one than in England, historically grounded in equity, and not so dependent on specialised procedures or specific remedies.  This view was endorsed by the Inner House of the Court of Session in West v Secretary of State for Scotland 1992 SC 385, which held that, although the grounds of review are essentially the same in the two jurisdictions, the scope of review is not.  The correctness of West has subsequently been repeatedly affirmed both by the Scottish courts and by the House of Lords/Supreme Court, and the claimed historical and conceptual distinctiveness of Scots law is sometimes invoked as a reason for not following English authority.  For instance in Eba v Advocate General for Scotland [2010] CSIH 78 one of the reasons given by the Inner House for refusing to follow the Court of Appeal’s ruling on the reviewability of the Upper Tribunal in R (Cart) v Upper Tribunal [2010] EWCA Civ 859 was the fact that judicial review in Scotland is available as of right and not dependent upon the discretion of the court.  For the same reason, inter alia, the Supreme Court considered it necessary to give separate judgments in Eba [2011] UKSC 29 and Cart [2011] UKSC 28, notwithstanding that it thought that the extent of review of the Upper Tribunal should be the same in both countries.

In fact, though, the practical differences between Scots and English judicial review are fast disappearing.  Indeed, the Supreme Court itself has done a good job in recent months of ridding Scots judicial review of some of its more problematic idiosyncrasies.  In Eba, reiterating that the grounds of review are the same in Scotland as in England, Lord Hope held that Lord Emslie’s dictum in Watt v Lord Advocate 1979 SC 102, to the effect that the Court of Session could only correct ultra vires and not intra vires errors of law, should no longer be followed, since it was irreconcilable with the decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.  Then in Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, the Supreme Court abandoned title and interest, as laid down by the House of Lords in D&J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, as the test for access to judicial review.  According to Lord Hope and Lord Reed, the Nicol test had been adopted before the modern development of public law and was therefore based in irrelevant and inappropriate private law concepts which had had a damaging effect on the development of judicial review in Scotland.  Since, in public law cases, the role of the courts was to vindicate the rule of law rather than private rights, they held that the test should be based on interests alone (the precise nature of the interest required depending on the context) and should in future be referred to as ‘standing’.  This clearly resembles the English approach, although it remains to be seen how far the Scottish courts will follow England in liberalising access to judicial review.

The abandonment of title and interest in favour of the English test of ‘sufficient interest’ had in fact already been recommended by the Gill Review (Report of the Scottish Civil Courts Review, Vol II, 2009, ch 12 – http://www.scotcourts.gov.uk/civilcourtsreview/theReport/Vol2Chap10_15.pdf), and Gill also recommended following the English approach by introducing a three month time limit within which to bring an application for judicial review, and a requirement to obtain leave to proceed.  Both recommendations have been accepted in principle by the Scottish Government, subject to consultation on the length of the time limit (Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review, 2010 – http://www.scotland.gov.uk/Resource/Doc/330272/0107186.pdf), although they have not yet been implemented.  These proposed reforms are less welcome than the reforms of standing and review for error of law, not only because there is no strong evidence that they are necessary, but also because they are likely to bring in their wake another problematic aspect of English judicial review procedure, namely increased litigation over the exclusivity of the judicial review procedure – a  problem which already exists in Scots law, but which has not so far been of major practical concern since there is little incentive to bring an ordinary action instead of judicial review.  However, these changes, if implemented, will not only be of practical significance.  The introduction of a leave requirement, for instance, will remove the claimed conceptual difference between Scots and English law relied upon in Eba.

What, then, is left of the alleged distinctiveness of Scots judicial review?  Apart from the available remedies – there is no Scottish equivalent of the prerogative orders, so ordinary civil remedies are used instead – the major outstanding difference relates to the scope of review and the related question of the classification of the remedy.  In West, Lord Hope, as Lord President of the Court of Session, stated that in Scotland, unlike in England: ‘The competency of the application [for judicial review] does not depend upon any distinction between public law and private law, nor is it correct in regard to issues about competency to describe judicial review as a public law remedy.’  Instead, judicial review was competent to correct errors or abuses by ‘any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.’  The appropriate test for identifying a reviewable decision was therefore the existence of a ‘tripartite relationship’ between the decision-maker, the person affected by the decision, and a third party from whom decision-making power has been delegated or entrusted.

This test has the major advantage over the English approach of not excluding from review powers derived solely from contract, and review of so-called ‘domestic tribunals’ is therefore more readily available in Scotland, even extending, in several cases, to the decisions of golf club committees.  More generally, though, the West test is highly problematic as a conceptual explanation of the scope of review and has proved no easier to apply in practice than the English public/private distinction (for fuller discussion see A McHarg, ‘Border Disputes: the Scope and Purposes of Judicial Review’ in A McHarg and T Mullen (eds), Public Law in Scotland, 2006).  Nevertheless, as already noted, Scottish judges continue to cite West with approval.  However, it too has been placed under considerable conceptual strain by the recent trend towards assimilation with English law.

The strain first began to show in Davidson v the Scottish Ministers (No 1) [2005] UKHL 76, which concerned whether the prohibition on granting coercive remedies in civil proceedings against the Crown in s.21 of the Crown Proceedings Act 1947 extended to judicial review.  In order to bring Scots law into line with the decision in M v Home Office [1994] 1 AC 377 that the prohibition did not extend to judicial review in England, but at the same time unwilling to draw a direct analogy between Scots and English judicial review, the two Scottish Law Lords, Lord Hope and Lord Rodger, introduced a distinction between ‘public law’ and ‘private law’ judicial review proceedings.  Arguing that the main purpose of the Crown Proceedings Act was to reform English law as it applied to private law proceedings against the Crown, they held that the phrase ‘civil proceedings’ in s.21 therefore only applied to private law proceedings.  Because judicial review in Scotland was not solely a public law remedy, it was not possible to exclude it entirely from the meaning of ‘civil proceedings’.  However, cases in which judicial review was being invoked against the Crown were public law proceedings, and so were not covered by the s.21 prohibition.

Although intended as a reaffirmation of West, the decision in Davidson in fact significantly revised it: contrary to West, judicial review in Scotland does involve a distinction between public law and private law, although this is a distinction that must be drawn within the judicial review caseload, rather than a means of delineating the boundaries of review.  The distinction is, however, a problematic one.  In the first place, it was not clear from the decision in Davidson how and where the boundary between public law and private law judicial review was to be drawn – there are suggestions in some places of an institutional approach to the distinction, but elsewhere of a functional approach.  Secondly, it was also unclear what, if anything, was the practical significance of the difference (although there is some authority to the effect that the grounds of review might be different for at least some categories of private decision-maker, such as arbiters – Diamond v PJW Enterprises Ltd 2004 SC 430).

Until recently, therefore, it might have been tempting to dismiss the deployment of the public law/private law distinction in Davidson as merely an expedient for getting round a problematic point of statutory interpretation, of no real practical importance.  However, the Supreme Court’s decision in Axa has both reinforced and given some substance to the distinction.  This is because both Lord Hope and Lord Reed expressly limited their rejection of title and interest to public law proceedings.  Lord Reed did not discuss what the test should be in private law cases, but Lord Hope stated that title and interest remains appropriate because: ‘The fact that a person upon whom a decision-making function has been conferred by a private contract is amenable to the supervisory jurisdiction is not something that is likely to affect anyone other than the parties to the contract.’

Nevertheless, while it may now have some substance, the distinction is no less problematic than it was before Axa.  There is no discussion whatever in Axa of how the line is to be drawn between public law and private law judicial review proceedings, and Lord Hope’s reason for differentiating them in relation to standing is, in my view, unconvincing.  While it may be true in some cases that contractually-based decisions are of no interest to third parties, just as some decisions taken under statutory authorities have no wider implications, it is not necessarily true in all cases, and certainly not in the more important instances of judicial review in the private sphere, such as in relation to self-regulatory bodies or contracted-out service providers.  It is not difficult to conceive of circumstances in which people not in a contractual relationship with such bodies – say the intended beneficiaries of self-regulation or the recipients of contracted-out services – might wish to challenge their decisions.  And while there may be legitimate concerns about over-exposing private decision-makers to potential challenges, these could readily be met by a contextually-sensitive application of an interest-based standing test, rather than by continuing to require proof of title to sue.

In fact, in my view, the attempt to distinguish between public law and private law judicial review proceedings in general is misguided.  Rather than resolving some of the problems created by West, it simply compounds the wrong-turning taken by Scots law in that case when the Inner House refused to follow English law in accepting, as I have argued elsewhere (see McHarg, 2006, above), that judicial review is always a public law remedy.  The essential problem is that, in West and subsequent cases, the Scottish courts have attempted to maintain two mutually inconsistent positions: first, that the Scots law of judicial review is fundamentally different from English law; but, second, that Scotland should follow England’s lead in relation to the substantive grounds of review, and now also in relation to procedural matters.  Instead of advancing a conceptually distinct account of the nature of judicial review in Scotland, the result, in my opinion, has simply been muddle and confusion.  By contrast, adopting the English version of the public/private distinction would undoubtedly bring with it practical difficulties, but it would provide greater conceptual coherence, by acknowledging the conceptual linkages between questions of scope, grounds and procedure.  Assimilation with English law would not, however, necessarily imply that the Scottish courts should follow every aspect of English jurisprudence on the scope of review – arguably, for instance, the English courts are wrong to exclude review of contractually-based decisions.  On the contrary, one of the benefits of abandoning the claim to a fundamental distinction between Scots and English law is that it would provide Scottish judges with a stronger conceptual foundation upon which to make a more active contribution to the development of judicial review – leading as well as following – than they have done in recent years.

In short, the time has come to consign West to the legal history books, along with Watt and Nicol.

Aileen McHarg is a Senior Lecturer in Law at the University of Glasgow.

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