The ultra vires doctrine

This decision moved towards a source of power and enmeshed approach that other judges have relied upon in later cases such as R v Servite. In this case the court referred to the early case of R v Datafin, that a body performing a public duty was amenable to judicial review.  However, the test under which a private body exercising a public law function was liable for judicial review did not provide assistance in the instant case as it was deemed Servite was in a purely contractual relationship and its sources of power had no statutory underpinning.

The fatal impediment to the amenability of Servite to judicial review lay in the fact that the source of its powers was purely contractual and the absence of any statutory underpinning. The relationship between Servite and the council was purely commercial. Servite was not exercising a public function and was not under any public law obligation to the applicants, and any remedy the applicants had in relation to the assurance given by Servite lay in private law.

Lord woof C.J in the case of Donoghue discussed what could make an act (such as Letting accommodation), which would otherwise be private, public? He identified the following factors

A feature or combination of features, which impose a public character or stamp on the act. This could include: statutory authority for what is done; the extent of control over the function exercised by a public authority; and close enmeshed of the acts in the activities of a public body: “the more closely the acts that could be of a private nature are enmeshed in the activities of a public body more likely they are to be public”.

Dawn Oliver points out the problem is that not all of the considerations identified by Lord Woolf relate to the nature of the functions or act in question, which is what s.6 is about.

 “ It is difficult to see how the classification of a function as of a public or private nature depend not on the nature of the function but on such institutional and related issues, especially since the HRA duties of local authorities to those they deal with do not depend upon whether what they are doing is a function of public or private nature”.

The similar case of R (heather) v. Cheshire confronted the new issue of the implementation of the HRA 1998, specifically s.6 that refers to public authorities, with particularly reference to ss.3 (B); any person certain of whose functions are functions of a public nature, but does not include either the House of Lords or a person exercising functions in connection with proceedings in Parliament.

The courts would, according to the HRA, assess a public body by way of a ‘functional’ approach to some extent like the one used in the case of Datafin, rather than the approach of ‘source of law’ used in the previous case of Servite.

However the court held that LCF’s role manifestly did not involve the performance of public functions. Even though it had failed, the claimants' argument was an appropriate issue to bring before the court by way of judicial review.

Lord Woolf seemed influenced by the fact that if Cheshire were held to performing a function of public nature then if a hotel (for example) were to house someone in relation to whom a local authority held a public duty to provide accommodation, the hotel would become a public body under s.6 HRA, which would not (Lord Woolf) “be appropriate”.

Dawn Oliver pointed out that this kind of anomaly would be multiplied in a Donoghue type of case where there was enmeshment between the Housing association and the Public authority and some residents were nominated and paid for by a local authority and others not.

The court held that essentially that in both cases it was a commercial contractual relationship at issue between the individual and the company providing the service.

The court held that the fact that a local authority had a contractual relationship with a private body, to perform a public function, did not make the actions of that contractor susceptible to public review, even where there was a direct contractual relationship between the authority and the contractor in the form of an agreement for the authority to have a right to nominate individuals to the contractor for the provision of accommodation.

It is important that organisations should be free to enter into commercial contracts with each other with certainty that such arrangements would not be susceptible to alteration or cancellation by the courts. The courts are being faced with the undesirable position of where the remedies available to the public vary according to whether the particular service was provided directly by a public authority, or whether exactly the same service was provided on behalf of a public authority but through the medium of a private contractor, or indeed was provided by the same company as a purely commercial venture.

Paul Craig stipulates that HRA should apply against the service provider, when referring to the two above case of Donoghue and Cheshire. He argued that it is non sequitur to assume that contracting out must inexorably mean that the service provider’s obligations reside solely in private, as opposed to, public law. He put forward that this would not affect the relationship between a public and private body when thinking of entering into a contract. The private body would just have to take into account the obligations when performing their function.

The courts a seemed reluctant, even with the clarification by HRA on what constituted a public function, to find private body’s susceptible to judicial review. Giving such a broad scope to judicial review, might open the floodgates to hundreds of applicants seeking remedies after unsuccessful appeals via private law, it may have even been feared that the private law may be seriously diminished if the courts did not rule as they did in these previous cases.

Paul Craig on the other hand argued that as the claimant would have to a prima facie breach of Convention right, and the service provider would have defences listed in, for example, article 8(2) or article 10(2) therefore unlikely to see any flood of such cases coming to court.

The important case of Aston Cantlow helped to clarify some of the questions raised in early cases. The House of Lords found that the PCC was not a "core" public authority under s.6 of the 1998 Act and even if the PCC could be a "hybrid" public authority under s.6 (3)(b) because it performed certain functions of a public nature, it was carrying out a private rather than a public function when enforcing the lay rectors' obligation to pay for chancel repairs so that it was not in that respect a public authority by virtue of s.6 (5).

Lord Nicholls elaborated a policy in favour of a interpretation of function of a public nature: the extent to which the body: Is publicly funded in carrying out the relevant function, or is exercising statutory powers, or is taking the place of central government or local authorities or is provoking a public service.

Lord Nicholls went on to speculate what this ruling means for other "hybrid" bodies, sometimes carrying out obviously "governmental" functions, but also acting as landlords, employers and other functions in the way which private bodies act. If the (PCC) could not be characterised as "public" then it is difficult to see how any other institutions that are not obviously "core" public authorities, such as charities, hospitals, or schools, should be caught by s 6 when doing something much less invasive as employing people or organising their own finances.

Lord Hobhouse did not agree that this obligation could be so easily be shuffled off into private law and thus beyond the purview of the Human Rights Act, but did find that it was a justified interference with their Protocol 1 Article 1 rights.
Harlow's article was mentioned in this case giving ‘warning against the over enthusiastic harvesting of a range of institutions and bodies for liability under the "public authority" section of the Act’ 

It is interesting to point out the approach used by the judges Hope & Nicholls, was a some what more “functional” approach than that of the other judges who still favoured, “the source of power” approach, defined in early cases.

Dawn Oliver stated that if the UK law which permits parochial church councils to impose burdens on lay rectors were to be found to be in breach of the Convention by the ECHR, the UK would be under an obligation under the convention to bring UK into line with convention requirements,

The courts were then faced again with this argument in the case of R v Beer where HMFL appeared to be running a purely commercial enterprise with no statutory underpinning and therefore would not have been susceptible to judicial review.

The defendant submitted that the fact that HFML were operating a market to which the public had access on public land was sufficient to classify HMFL amenable to judicial review and that there were in any event a number of features of the relationship between HFML and the council that demonstrated that HFML were exercising a public function.
The courts considered both the nature of the power and its function of HMFL. The fact that the power was being exercised in order to control the right of access to a public market was an important feature along with the fact that the markets were markets held on publicly owned land to which the public had access was critical.

The council using its statutory powers set up HMFL and assisting HMFL in a number of different ways justified the conclusion that HMFL were amendable to judicial review.

Dyson L.J giving the leading judgement signified that there is no litmus test for amendability, that the nature of the power and function need to be considered carefully, and that relevant factors were set out in Donoghue and Cheshire.

On the Subject of HRA the courts held that Aston Cantlow was good law and was not overruled by the finding in Donohue and Cheshire.

In the article published by Professor Dawn Oliver predicted that the term "public authority" in s.6 of the Act would be given a wide interpretation, with the sometimes undesirable consequence that institutions and organisations caught by that definition, for example charities, universities and self-regulatory bodies, would not be able to claim the status of victim should they find themselves at the wrong end of a breach of the Convention. She recommended that the definition of "public function" in s.6 (3)(b) should not follow the definition accepted on judicial review:

"The courts should be wary of treating services either to the general public or to individuals as public functions unless they involve the exercise of coercive power to special authority, both because of the difficulties in defining and limiting the extent of this form of vertical effect of the Act, and because such treatment legitimates state control of many activities by private bodies, often by individuals by private bodies, often by individuals, thus rolling forward the frontiers of the state."

However the case of Aston Cantlow has to an extent answered some of the worries expressed by Professor Oliver; if the courts are inclined, to take a broad "functional" approach to defining what is or is not a public authority, it does not necessarily mean that a whole range of bodies and institutions would be deprived of the ability to take human rights challenges themselves.

The courts have juggled with the idea of whether a private body could be amendable by judicial review. Although the judgements in the early cases were spectacle about opening up HRA definition on what constitutes a public body, later cases have confronted this matter. The courts have taken a broad functional approach, however this as been limited by the “Hybrid body” found in Aston Cantlow and in the case of Beer. It is of my opinion that Tobias would be successful, as the law stands now, if he appealed to the courts for Judicial review.      

 

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