⇒ Amenability is concerned with the question of who may be judicially reviewed.

⇒ Thus far, these notes have been talking of public bodies with statutory or prerogative jurisdiction.

⇒ But some bodies may act without any such formal power (statutory or prerogative), or may have little or no formal legal identity, and yet be amenable to judicial review!

• But in almost all cases we are talking about bodies which do have formal powers

⇒ Datafin were looking to takeover a company, but complained to the Panel on Takeovers and Mergers about the company (to be taken over) acting in concert with other parties in breach of the City Code.

⇒ The Panel dismissed the complaint, and the claimant sought judicial review of that dismissal. The question was, was the panel an amenable body for judicial review purposes?

• Peculiarly, the Panel operated through the consent of the City of London; it had no formal powers or statutory underpinning. It was effectively an exercise in self-regulation.

⇒ The High Court dismissed the action because the body was not thought to be susceptible to judicial review.

• Only recently had the GCHQ case occurred where judicial review had been extended to the prerogative, but now the court were being asked to extend it further

⇒ The Court of Appeal heard an appeal on the jurisdictional (amenability) question, and the substantive application.

• The Court of Appeal decided that the Panel was an amenable body
• Although it had no statutory footing, it performed governmental or public law duties, and was part of a governmental framework for regulating activity in the City;
• It had been referred to by statute and was recognised as having quasi-judicial powers of decision-making and enforcement;
• The function of the Panel points towards a public law body who must come under the scrutiny of the courts in judicial review.

⇒ The claimant (a racehorse owner) sought judicial review of decision to disqualify his filly (i.e. a young female horse) and fine the claimant when a banned substance was found in the horse’s urine

⇒ The Jockey Club had been incorporated by Royal Charter, but gained its powers from the issuance of licences and permits in a system of sport self-regulation.

• This is similar to the ex parte Datafin case as we are talking about a body which is really about self regulation and about a body which administers the rules of racing (like the Panel who administered the code on take over and mergers)
• But here the court decided this was a private law body, not a public law body so is not amenable to judicial review

⇒ The two leading cases are very similar: both bodies had a precarious public existence. But the source of the power is largely irrelevant; does the body exercise functions that are public law functions?

• Regulation of commercial practice = public
• Regulation of sport = private

⇒ We must also look at the amenability (i.e. susceptibility to judicial review) of bodies under the Human Rights Act 1998

Section 6 HRA

⇒ (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. […]

⇒ (3) In this section “public authority” includes -

• (a) a court or tribunal, and
• (b) any person certain of whose functions are functions of a public nature, (but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.)

⇒ The Wallbanks owned a farm on church land. As ‘lay rectors’ they would be liable for any repairs needed to the church under archaic laws dating back to the 16th century (although underpinned by the Chancel Repairs Act 1932).

• The church issued the Wallbanks with a notice to pay £96,000 (which later increased to £230,000) under this law for the upkeep of the church
• The claimants sought to rely on the Human Rights Act to argue that the Church of England parish was a public authority depriving them of their Article 1 of the First Protocol ECHR rights to peaceful enjoyment of their possessions.

⇒ A legal question for the courts was whether the HRA applied: was the church parish a public authority under s.6(3)?

• The Court of Appeal said that it was, and that there had been a breach of the Article 1 First Protocol right to property, and Article 14 on unlawful discrimination in respect of the enjoyment of the substantive right (Art 1, FP)
• The HoL allowed the church parish’s appeal and reinstated the original order to pay the chancel repair bill → in other words, the court is saying that they can rely upon their private law right because the church parish is not a public authority for the purpose of the HRA

⇒ The Wallbanks later sold their house to meet the cost of the bill (and legal costs of £250,000).

⇒ The House of Lords in Aston Cantlow and Wilmcote v Wallbank distinguished between ‘core’ and ‘hybrid’ public bodies

⇒ ‘Core’ public bodies bodies are those which are ordinarily subject to review by ECtHR: those public bodies that are the state or emanations of the state (e.g. local government, the police, etc.)

• But, section 6(3) HRA indicated an intention to go beyond those ‘core’ public bodies.

⇒ ‘Hybrid’ public authorities are those that are sometimes public bodies, sometimes private bodies

⇒ One key distinction explored by Lord Nicholls is on the question of whether a particular public authority is able to bring cases under HRA (i.e. have standing):

• If they can’t, they must be a core public authority;
• If they can, yet their functions are sometimes public in nature, they are a hybrid public authority.

⇒ Having regard to the church parish’s functions, many of which were private in nature, the church parish was considered to be ‘hybrid public authority’ under s.6(3) HRA.

⇒ The question remains: does the exercise of the church’s rights to chancel repair contributions from nearby landowners express a public law or private law function?

• The House of Law said it was a private law function, so the HRA did not apply i.e. the church is exercising its rights to money, which is a property right

⇒ Let’s think about the Church of England’s functions:

• Officiating marriages – public
• Conducting burials – public
• Keeping registers – public
• Running state-funded faith schools – public
• Offering a place of worship – private
• Engaging in contracts – private
• Enforcing property rights – private

⇒ Aston Cantlow and Wilmcote v Wallbank (above) is the leading case on functional public authorities (i.e. hybrid public authorities)

⇒ The courts have been trying to grapple with the concept of hybrid public authorities (or ‘functional public authorities’) in the context of the contracting out of statutory functions.

⇒ This is distinctly modern concern.

• From 1910 onwards, the state expanded into welfare & social security, housing, health, industry.
• Thatcher privatised parts of the state, creating a system of private enterprise with public regulation.
• Today, what remains of the state (health, social housing, the administration of justice) is increasingly being contracted out to private providers: Serco carry out a lot of work for Mayor of London, G4S helps with the administration of justice, Atos, Capita, etc.

⇒ With these cases, the pattern is the same:

• Parliament confers a specific legal duty on a public authority by an Act of Parliament;
• That public authority seeks to outsource the function to a private provider – usually with the intention it saves money;
• That private provider makes a decision engaging an individual’s Convention rights;
• The question arises as to whether the private provider is a functional public authority under s.6(3) HRA.

⇒ Donoghue as provided with temporary non-secure tenancy by a local authority, pending determination of whether she was intentionally homeless. The property was transferred to a housing association, with a distinct legal identity to the local authority. The housing association served notice to quit, and pursued a possession order in the courts.

⇒ Donoghue sought to argue that her rights under Article 8 ECHR (i.e. right to respect of one’s private and family life) were engaged, and sought an adjournment to the possession proceedings so that the point could be argued about her article 8 rights.

⇒ The trial judge refused the adjournment on the basis that, if her Article 8 rights were engaged, there would be no infringement of that right. She appealed to the Court of Appeal. The Court of Appeal agreed on the point that no Article 8 infringement would occur.

⇒ But crucially, the Court of Appeal did rule that Poplar Housing was a public authority under s.6(3) having regard to:

• The statutory responsibilities it was exercising on behalf of the local authority;
• The closeness between the local authority and the housing authority (the former created the latter).

⇒ The claimants were long-stay residents of a care home run by Leonard Cheshire, and funded by the local authority or health authority as appropriate.

⇒ Leonard Cheshire sought to close the care home despite earlier assurances that residents would be able to stay there as long as then needed the accommodation.

⇒ The claimants challenged the decision under the HRA, on the grounds that the decision to close the care home would be in contravention of Article 8 ECHR (i.e. right to respect of one’s private and family life)

⇒ The court had to first determine whether Leonard Cheshire fell under s.6(3) as a functional public authority (or ‘hybrid’ public authority)

⇒ The court said that Leonard Cheshire wasn’t a functional public authority:

• The Article 8 ECHR obligations of the local authority had not been fully contracted out to Leonard Cheshire, so there was an insufficient conferral of the public law function to Leonard Cheshire.

⇒ A crucial difference between the cases seems to be that Poplar Housing was something of an alter ego of the housing authority - the housing authority set Poplar Housing up, and they shared many resources and facilities.

⇒ Leonard Cheshire was distinct, and thus the ‘core’ local authority or health authority remained the amenable public body in the absence of the contracting out of liabilities.

⇒ The claimant was 84 years old, and required residential care under s.21 of the National Assistance Act 1948. The care was provided by Southern Cross: a for-profit firm operating care homes for the benefit of public and private residents. The majority of the claimant’s fees were met by the local authority. There was a disagreement between the claimant’s relatives and the care home, so the care home simply decided to terminate the care contract and remove the claimant from the home.

⇒ A claim was brought under the HRA, and the question for the court was whether Southern Cross was a functional public authority, such that it would be bound by Article 8 ECHR (i.e. right to respect of one’s private and family life)

• By a 3-2 majority (Bingham and Hale dissenting), Southern Cross was held not to be a functional public authority for the purposes of s.6(3) HRA
• In other words, the HRA rights of the claimant against the local authority had not been contracted out to the care provider

⇒ The assistance being provided by the State is to put the claimant in a comparable position to Southern Cross’ private residents i.e. the support is financial. To decide otherwise would be to give the state-funded residents more rights than the private residents, i.e. public law rights in addition to contractual rights

• In other words, Lord Mance is saying that if the HRA was to apply in this case it would cause a division of those people in care → those that are state-funded residents would have the protection of public law rights in addition to contractual like, unlike individuals who are funded privately

⇒ Imagine the following hypothetical care residents:

• Person A, housed by the local authority in a local authority-run home.
• Person B, housed by Southern Cross, but funded by the local authority.
• Persons C, housed by Southern Cross, and funded privately.

⇒ Lord Mance does not want to place Person B in a stronger position than Person C.

⇒ Bingham said that “the greater the state’s involvement in making payment for the function in question, the greater (other things being equal) the assumption of responsibility”

• Southern Cross, in delivering this care for these high needs residents, is assuming a responsibility which also includes the assumption of human rights responsibility

⇒ Lady Hale: “This was a function performed for the appellant pursuant to statutory arrangements, at public expense and in the public interest. I have no doubt that Parliament intended that it be covered by section 6(3)(b). The Court of Appeal was wrong to reach a different conclusion on indistinguishable facts in Leonard Cheshire.”

⇒ S.145 Health and Social Care Act 2008 reverses the effect of YL in the context of publicly funded care under the 1948 Act:

• (1) A person (“P”) who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (c. 42) (acts of public authorities) to be exercising a function of a public nature in doing so

⇒ But YL is still relevant and applicable to the general approach taken by the courts on this interpretation of functional public authorities under s.6(3) HRA

⇒ The claimant was a tenant who had most (but not all) of their rent paid for by the local authority. The registered social landlord sought possession of the property when the rent fell into arrears. The claimant sought to rely on her Convention rights in contesting the possession order. The Court of Appeal held that the landlord was a functional public authority (i.e. a hybrid public body)

• In other words, the court of appeal held that a private landlord was on hybrid public body because although they are out to make a profit, they were registered with the local authority to provide social housing

⇒ The CA had regard to:

• The significant public financing of the accommodation;
• The extent to which the landlord worked in close harmony with the core public authority (the local authority);
• The fact that the landlord was bound by a regulatory framework for social housing

⇒ The CA further considered that:

• Parliament had intended to confer public law rights on claimants subjected to the decisions of hybrid public bodies; and
• Perhaps the situation would be different were the landlord to enforce his private law rights to possession of the property where the rent was at market value.