Traditionally, the courts looked at the source of a body's power when determining whether or not it could be subject to judicial review. Bodies exercising powers granted by statute were subjected to judicial review, which measured their conduct against standards of legality (were the bodies acting within the powers they had granted?) as well as fairness and rationality (using the fiction or rationalisation that Parliament cannot have intended bodies to act otherwise).
While this approach embodied an element of simplicity and certainty, it became increasingly limited and artificial. First, the landmark GCHQ case emphasised the importance of the nature of the power. Hence, the exercise of some prerogative powers – creatures of common law and not statute – were amenable to review.
Then the decision of the House of Lords in R v Panel on Takeovers and Mergers, ex parte Datafin (1987) established that a non-statutory panel with quasi-governmental powers could be subject to judicial review when exercising those powers – a public body could be defined by its function, regardless of its source.
However, things became further complicated by the decision in R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan (1993), where a voluntary association with extensive powers over jockeys and underpinned by Royal Charter was not subject to judicial review, as the club's powers over its members derived entirely from contract.
Critics argued that such tests, namely those centring around source, function or nature of powers, were increasingly unable to provide a coherent framework for providing principled control over the ever more privatised state in which formerly public functions were being discharged by an array of private bodies.
So, how does the Human Rights Act 1998 (HRA) change things, if at all? First, Section 6 of the HRA makes two types of body subject to scrutiny – so called “standard” public authorities and “functional” public authorities. Unlike standard authorities, the latter are only liable under the HRA in relation to public and not private acts. This distinction itself creates difficulty. Even the most standard public authorities have private functions, such as the power to make employment contracts with individuals or to commercially lease property to third parties. Under the terms of Section 6, the authority would be liable with respect to these acts, whereas a functional authority would not.
More problematic is defining the term “functions of a public nature”. Is the test under the HRA the same as that for amenability to judicial review? This might accord with Civil Procedure Rule 54.1, which suggests states in which judicial review is available with respect to “a decision, action or failure to act in relation to the exercise of a public function”. However, judicial review of a standard public body is not available where the decision in fact relates to the exercise of a private function, whereas a claim under the HRA is.
Unhelpfully, the case law relating to Section 6 has muddied the waters further. In one case, Poplar Housing v Donoghue (2002), the Court of Appeal held that a housing association was not a standard public authority, but could be a functional one where the body had a close relationship with the local authority and the tenant was previously a local authority tenant. A contrast with the almost identical pre-HRA case of Servite Houses (2000) suggests that review under the HRA refreshes parts ordinary reviews cannot reach. But in R (Heather) v Leonard Cheshire (2002), the Court of Appeal decided that a nursing home housing disabled people placed there by social services pursuant to statutory powers was not exercising a public function when deciding to close the home. The defendant body had no statutory powers and was not “standing in the shoes” of the local authority. The argument that the home should be subject to judicial review because it was exercising the same functions as formerly discharged by the local authority (which functions would have been reviewable in the hands of the authority) was rejected.
Putting all of this together, and despite judicial comment to the contrary, it would appear that 'public body' has different meanings in judicial review and Section 6 of the HRA. Standard public authorities faced increased review under the HRA for what were formerly their “private acts”. Meanwhile, the range of bodies that are 'functional public authorities' appears under the developing HRA test to be slightly wider than under conventional judicial review principles.
The fact that a difference remains has important procedural implications, given the stricter 'victim test' for standing and the different time limits and enhanced remedies in the HRA.
Some commentators welcome the difference, claiming that the HRA is supposed to protect the rights of the European Convention on Human Rights (ECHR) throughout society. But this would suggest the courts giving the HRA's definition of public authority a much more generous interpretation than in judicial review, something they have on balance failed to do. In addition, it seems to make little sense that a person might be able to challenge a housing association exercising public functions on the basis that it infringed their ECHR right to private and family life, but not that the association's act itself was outside its powers and thus contrary to the rule of law.
In the circumstances, a single, generous and consistent definition of public authority should be adopted, with the court's general reluctance to interfere in the contractual dealings of standard authorities being re-explained as a function of justiciability rather than amenability to review. The uniform test should look at the nature of the defendant's powers and functions, how or why it has acquired them and what those powers enable that body to do. Where it is able to affect individuals in ways not open to a normal private body, then it could be open to review in respect of those acts.
Only in this way can the courts respond to the increasing delivery of public services and functions by contract, and ensure accountability of real public power to both human rights standards and conventional standards of legal, fair and rational decision-making.
The inevitable challenge facing judicial review courts will be working out how and why bodies such as PFI or public-private partnership contractors, state-awarded monopolists, privately-owned or charitable registered carers, adoption authorities, successful tenderers for local government contracts and so on should or should not be scrutinised by reference to these public law standards.
Thomas de la Mare and Nicholas De Marco are barristers at Blackstone Chambers