ItIs generally accepted amongst English jurists that power may be characterised as either public or private, and that judicial review is available only with respect to the exercise of public power.Footnote 1 Prior to the decision of the Court of Appeal in R v. Datafin, ex p Panel on Take-overs and Mergers,Footnote 2 the source of a power (whether in statute or the prerogative) was determinative of whether that power was public and, therefore, potentially subject to judicial review in England. Following the decision in Datafin, however, regard may be had to the nature of a power, considered independently of the power's source, to determine whether the power is public in the relevant sense.Footnote 3 Consequently, the operation of judicial review is no longer limited to power that derives from statute or the prerogative. Furthermore, some decisions since Datafin have even gone so far as to suggest that the “nature of power” approach to determining whether power is public for the purposes of judicial review does not complement the “source of the power” approach but, rather, supplants it.Footnote 4 The result, at least according to these decisions, is that power may not necessarily be public even if it derives from statute.
The purpose of this article is to examine whether the specific tests relied on by the English courts positively to determine whether power is public by virtue of its nature, rather than its source, can be applied coherently in practice. Notwithstanding the recently acquired ability of the High Court to transfer challenges to the exercise of public power commenced incorrectly as normal civil actions to the Administrative Court,Footnote 5 and the apparent likelihood that it will do so,Footnote 6 these tests remain of considerable practical importance. At the very least, they play a crucial role in potentially rendering subject to judicial review power that does not derive from statute or the prerogative. Hence, in the absence of a pre-existing legal relationship between two persons – as would exist, for example, if they were parties to a contract – judicial review may be the only basis upon which one party may seek to challenge exercises of such power that may adversely affect him. If, for instance, the issue in contention was the refusal of one party to provide a service to another, or to grant him permission to engage in some activity, it is difficult to think of a private law avenue of redress that would be of assistance. But, as far as the courts are concerned, judicial review is available in such circumstances only if the refusal was made pursuant to the exercise of public power.
This article is divided into two main parts. In the first part, it examines critically the two principal tests that have been relied on by the English courts to determine whether power is public by virtue of its nature for the purposes of judicial review. These tests will be referred to here as respectively the “but-for” test and the “statutory underpinning” test. The second part of the article will consider more broadly the jurisprudence surrounding the Human Rights Act 1998, and the direct effect of Community directives. The notion of that which is “public” plays a significant role in each area. The relevant jurisprudence from each area will be examined to ascertain whether it might be of assistance in formulating a coherent test to determine whether power is public, by virtue of its nature, for the purposes of domestic English judicial review.
The article will conclude that the difficulties inhering in those tests currently relied on by the courts, not only in the context of English judicial review, but also in respect of the Human Rights Act and the direct effect of Community Directives, are serious and entrenched. However, it is important to emphasise that it does not follow from that conclusion that the courts could never formulate a workable test. Given this article's focus on examining the problems inhering in the tests currently relied on by the courts, it is beyond its scope to articulate and fully develop, in an in-depth fashion, a test that could successfully be relied upon by the English courts to distinguish between power which is public, and that which is private. Nonetheless, in the article's conclusion an alternative test, which might be relied upon for the purposes of distinguishing between public and private power in the context of English judicial review, will be tentatively advanced.
THE ENGLISH TESTS
The but-for test
Pursuant to the but-for test, power will be public if exercised pursuant to the carrying out of a function in circumstances where, in the absence of a non-governmental body to perform the function, the government itself would almost invariably carry out the function.Footnote 7 The principal difficulty with the but-for test is that the test is very difficult to apply coherently in practice.Footnote 8 The test requires the court to make an assessment of whether the government would undertake a particular function. But the test provides no criteria by reference to which it can be determined what functions, or even what sort of functions, the government would undertake. An explanation as to why the English law of judicial review provides no specific criteria to permit the courts to determine whether the government would undertake a particular function may be found in the work of Allison. Allison contends that “due to the lateness and limited extent of administrative centralisation”Footnote 9 in England, as well as the “theoretical insularity of the English legal profession”,Footnote 10 there does not exist in English law a “prevailing and well-developed theory of the state”Footnote 11 appreciative of the distinctness of the administration and its role.
Moreover, there is no general consensus in the community about what functions the government should perform. Rather, this is a matter giving rise to “deep ideological disputes”,Footnote 12 with political parties disagreeing about the proper role of the State, particularly in the context of privatisation,Footnote 13 and political theorists having widely divergent views about the distinction between that which is public and that which is private and the role of the State.Footnote 14
Nor may judges derive assistance in ascertaining the functions that the government would inevitably undertake by attempting to derive criteria by observing the sorts of functions that are in fact engaged in by different bodies. One is unable, for instance, to have regard to the activities of, on the one hand, government departments – “the paradigms of public bodies”Footnote 15 – and, on the other, of private corporations – referred to by Taggart as “the epitome of private sector enterprise”Footnote 16 – and to derive from these observations criteria which will enable the determination of what functions are necessarily governmental. Such an approach will be unsuccessful because there is significant overlap between the sorts of functions and activities that are performed by each – there is simply no clear line of delineation, with no activity being “typically governmental in character nor wholly without parallels in private law”.Footnote 17
Finally, there will only very rarely be any kind of evidence available to indicate the legislature's view with respect to the undertaking of a particular function.Footnote 18 It is not plausible either that a court could determine whether the government would undertake a particular function by examining, for instance, the government's attitude or practice with respect to other similar matters, even if the government had a clear attitude or practice with regard to such matters.Footnote 19
A consequence is that in purporting to apply the but-for test, judges will, to a very large extent, be required to rely on their own conceptions of the appropriate role of the government. Because judges are not political scientists, these conceptions, where they exist at all, will be largely intuitive and unexamined. Accordingly, the judges' conclusions as to whether the government would undertake a particular function will tend to be ad hoc and unprincipled. Hence, for instance, in R. v. Football Association Ltd ex p Football League Ltd Rose J.'s view that the Football Association was not subject to judicial review was bolstered by his observation that football is a “popular form of entertainment and recreation”.Footnote 20 Implicit in Rose J.'s analysis is the conviction that the government would not become involved in the administration of an activity which exists for the purposes of entertainment and recreation. The government would not become involved in the administration of football even though football, in the words of the judge himself, is a sport which “thousands play and millions watch”,Footnote 21 and in respect of which “millions of pounds are spent by spectators, sponsors, television companies and also clubs”.Footnote 22 It is suggested that Rose J.'s conclusions about whether the government would become involved in the administration of football are not self-evidently correct. More importantly for present purposes, they appear to have been reached in reliance on an unarticulated and possibly undeveloped conception of the role of government.Footnote 23
The difficulty of applying the but-for test is perhaps reflected by the somewhat conspicuous reluctance of judges at times even to attempt to apply it. Hence in R. v. Press Complaints Commission, ex p Stewart-Brady,Footnote 24 the judges in question simply assumed, without deciding, that the court had jurisdiction to hear claims for review in respect of decisions made by the respondent body,Footnote 25 and then found that the grounds of review would not be made out.Footnote 26 In similar fashion, in R. v. Life Assurance Unit Trust Regulatory Organisation Ltd, ex p Ross,Footnote 27 the judges accepted the concession of the respondent's barrister that Lautro was subject to the court's jurisdiction,Footnote 28 and again found that the relevant grounds of review had not been established.Footnote 29 In both cases, then, the need to make determinative findings as to whether the court had jurisdiction was avoided, as was the need to employ the but-for testFootnote 30. It is not suggested that there was anything improper about the approaches adopted by the judges in Stewart-Brady and Ross – indeed, the application before the court in Stewart-Brady was for leave to apply for judicial review. However, it remains that, logically at least, the question of whether the court has jurisdiction to consider a claim for review in respect of a certain body comes before the question of whether that body has, for the purpose of the claim for review, contravened the principles of good administration.
It is also troubling that certain of the judges who do actually purport to apply the but-for test appear not properly to understand what the test actually requires, a misunderstanding that may be attributable, at least in part, to the difficulties involved in applying the test as properly conceived. As Beloff and Kerr point out, the but-for test, properly understood, presupposes that no private body would be prepared to undertake the function in question.Footnote 31 It is only by having regard to how the government would act in those circumstances that it can be ascertained whether a function – and power exercised pursuant to the function – is genuinely public.
Accordingly, it would be a mistake to hold, purportedly pursuant to the but-for test, that a function was not public, on the basis that the government would not invariably undertake the function, because of the preparedness of a private body other than the respondent to undertake the function. It can hardly be thought that the “adventitious availability”Footnote 32 of a non-governmental body willing to exercise a function would preclude that function from being public, especially given that the whole point of the but-for test is to ascertain whether functions which are exercised by non-governmental bodies may be public.
And yet the but-for test has been applied in precisely that way. Hence, for instance, in R. v. Servite Houses, ex p Goldsmith Footnote 33, Moses J. held that the provision of residential accommodation to the elderly was not a public function pursuant to the but-for test because if Servite Houses did not provide that service on behalf of the Wandsworth Borough Council, the Council could nonetheless “make arrangements for another private person or voluntary organisation”Footnote 34 to provide the accommodation. There was thus “no warrant for the assumption that Wandsworth would itself have to provide residential accommodation”.Footnote 35 Similarly, in R. (on the application of Moreton) v. Medical Defence Union,Footnote 36 Newman J. held that even if the Medical Defence Union did not provide for the indemnification of dentists against claims in negligence, insurance companies would provide such indemnification.Footnote 37 As a consequence, the provision of indemnification could not be characterised as a public function because it was not the case that the government would have to provide the indemnification if the Medical Defence Union did notFootnote 38.
It is suggested that the misapplication of the but-for test in the way described will be detrimental to applicants for judicial review. Pursuant to the application of the but-for test properly conceived, there is at least some possibility that a judge, relying on her intuition, will hold certain functions to be public – if the judge determines that in the absence of a private body to carry out a function, the government would invariably carry out the function. The same cannot be said, however, of the misconstrued version of the but-for test, at least in respect of the vast bulk of functions, in return for the performance of which payment may be levied. It is almost certain that there would be individuals or non-governmental bodies other than the respondent prepared to undertake such functions, if for no other reason than to obtain payment. Therefore, it would almost never be found, pursuant to the application of the misconstrued version of the but-for test, that the government would invariably undertake a particular function. Consequently, it would almost never be the case, pursuant to the application of the test, that a function would be classified as public.
The statutory underpinning test
Pursuant to the statutory underpinning test, power exercised in carrying out a function will be public if the body performing the function is underpinned by statutory provisions in such a way that it may be said that the body has been “woven into the fabric”Footnote 39 of government. There are two versions of the statutory underpinning test in English law. Pursuant to one version, the statutory underpinning facilitates the performance of the activities of the body in question by regulating the behaviour of those who deal with the body, and exposing them to the possibility of sanction if they contravene the body's requirements. Hence, for instance, although the Panel on Take-overs and Mergers, the subject of consideration in R. v. Panel on Take-overs and Mergers, ex p Datafin, had no legal personality,Footnote 40 the admission of a company's shares to the Official List could be withheld, pursuant to the Stock Exchange (Listing) Regulations 1984, in the event that a company breached the Panel's City Code on Take-overs and Mergers.Footnote 41
Pursuant to the other version of the statutory underpinning test employed in English law, the activities of the body carrying out the function are themselves regulated by statute. Hence, for instance, in R. v. Haberdashers' Aske's Hatcham College Trust, ex p T Footnote 42 and R. v. Cobham School, ex p S,Footnote 43 decisions made by the schools with regard to students' places at the schools were subject to review. In each case, the court was prepared to exercise its supervisory jurisdiction because the government, through statute, exercised significant control over the manner in which the schools were run, including the setting of entry criteria.Footnote 44
As with the but-for test, neither version of the statutory underpinning test can coherently be applied in practice. The courts do not regard as amenable to judicial review the functions of all bodies which are underpinned by statute. In R. v. Muntham House School, ex p R,Footnote 45 for instance, the court held that a school's decision to expel a pupil was not amenable to judicial review. The school was underpinned by statute, in the second sense described above, and hence was “subject to a strict regime of statutory control”Footnote 46 under the Education Act 1996 and the Education (Special Schools) Regulations 1994. Nonetheless, according to the court, the statutory underpinning to which Muntham House School was subject was insufficientFootnote 47 for decisions made by the school to be subject to judicial review.
A reluctance on behalf of the courts to subject to judicial review all bodies whose activities are underpinned by statute is understandable. Most commercial concerns, for instance, are regulated by statute at least to some extent. Accordingly, if all bodies that are underpinned by statute were subject to judicial review, the province of judicial review would be expanded enormously.Footnote 48 The difficulty lies in the failure of the courts, in their application of either version of the statutory underpinning test, to provide a principled means of ascertaining just when the underpinning of a body will permit judicial review to lie. Accordingly, determinations by the courts that a body is, or alternatively is not, subject to review, made by reference to the body's statutory underpinning, are ad hoc and unprincipled.
In Muntham House School, for instance, Richards J. sought to differentiate the case before him from R. v. Cobham School, ex p S, in which the court had subjected to review a decision of the Cobham House School concerning an assisted place. Richards J. in Muntham House School said that the court's exercise of its supervisory jurisdiction was justified in Cobham because provisions of the Education Act 1996 and the Education (Assisted Places) Regulations 1995 defined the criteria by which students would be admitted to assisted places. The statutory provisions revealed the “true extent of the statutory underpinning or penetration”.Footnote 49
The importance accorded by Richards J. in Muntham House School to the setting by statute of the criteria by which students would be admitted to assisted places in Cobham, is not entirely clear. On the one hand, it may be that there will only be the requisite degree of statutory underpinning, at least in the case of a body that provides a service, if there is an underpinning of the means by which it is determined whether a person receives the service. In Cobham the criteria for admission, underpinned by statute, would determine whether education at the school was available to a prospective student. This interpretation is strongly suggested by the judge's reference to the “true extent of the statutory underpinning or penetration” – the underpinning goes so far as to be concerned with the criteria for the provision of the service. But such an approach arbitrarily attributes particular weight to a specific matter. It is not apparent, for instance, why the statutory underpinning of the criteria by reference to which a service will be available reveals a greater degree of statutory underpinning of the body providing the service, than would, for instance, an extensive underpinning of the manner in which a service was provided, as was present in Muntham House School.
On the other hand, Richards J. in Muntham House School may have been suggesting that if judicial review is to be available pursuant to the statutory underpinning test, there must be a statutory underpinning of the specific function in respect of which the impugned decision is made. The case to which Richards J. was referring when making his observations about the availability of review pursuant to the test was Cobham. In that case, review was sought of a decision to reallocate a student's assisted place at the school and, as mentioned above, statutory underpinning existed with regard to the provision of assisted places. But such a position seems arbitrary, too, at least in cases where bodies, like the Muntham House School, are subject to extensive statutory underpinning. Presumably the relevance of a body's underpinning by statute, for the purposes of the availability of judicial review, is that such underpinning demonstrates governmental concern for, and involvement with, the activities of the body in question. If this is the case, it would be very odd if, despite being subject to extensive statutory underpinning, a body were exempt from judicial review with regard to a decision, simply because the underpinning did not extend to the particular function in respect of which the decision was made.
The difficulties with the principled application of the statutory underpinning test extend beyond merely the arbitrariness of the locus of the underpinning. The arbitrariness extends to the nature of the underpinning, and, indeed, even the requirement for underpinning itself. As noted above, the relevance of a body's underpinning by statute, as far as concerns judicial review, appears to be that the underpinning demonstrates governmental concern for, and involvement with, the activities of the body in question. But governmental concern for and involvement with a body's activities is not limited to the underpinning, by statute, of those activities. The government evinces concern for, and involvement with, a wide range of endeavours through, for instance, the provision of substantial financial incentives and subsidiesFootnote 50 to the bodies carrying out those endeavours.
Hence, even if the courts could determine, on a principled basis, what degree or kind of statutory underpinning of a body or function would be sufficient to subject the body or function to judicial review, problems would still remain with regard to the coherent application of the statutory underpinning test. If the courts were prepared to subject a body's activities to judicial review as a consequence of the governmental concern for and involvement with that body evinced by statutory underpinning, it is difficult to conceive of a principled basis upon which the courts could decline to subject to review at least some of the activities of a body that had received financial assistance from the government. The government would have demonstrated concern for and involvement with the activities of the body in the latter case just as surely as it would have in the former.
TESTS RELIED ON IN OTHER AREAS
The Human Rights Act
If the law of domestic judicial review provides no satisfactory means of determining whether power is public and, therefore, potentially amenable to judicial review, a question arises as to whether assistance may be gained from any other areas of the law. For example, section 6(1) of the Human Rights Act 1998 (“the HRA”) says that it is unlawful for a “public authority to act in a way which is incompatible with a Convention right”, while s. 6(3)(b) includes as a public authority “any person certain of whose functions are of a public nature”. It is recognised that judges' findings as to what constitutes a “public authority” for the purposes of the HRA will not be determinative of whether power is public for the purposes of domestic judicial review.Footnote 51 However, the jurisprudence in relation to section 6 is worthy of examination on the basis that it could potentially suggest approaches that may be employed in the context of domestic judicial review to determine whether power is public.Footnote 52
The two leading English cases on the interpretation of section 6 of the HRA are Aston Cantlow and Wilmcote and Billesley Parochial Church Council v. Wallbank Footnote 53 and YL v. Birmingham City Council and ors,Footnote 54 both decided by the House of Lords. In the former case, the Billesley Parochial Church Council sought to recover the cost of repairs to the parish church from the defendants, freehold owners of former rectorial land, in reliance on the defendants' status as lay rectors. The defendants argued that such attempts were incompatible with, inter alia, the defendants' right to the peaceful enjoyment of their possessions, as guaranteed by article 1 of the First Protocol to the Convention. A relevant question, therefore, was whether the Parochial Church Council was a public authority for the purposes of s 6 of the HRA. The latter case, decided very recently, involved the determination, as a preliminary issue, of whether a non-governmental care home for the elderly, which received substantial payments from the local authority in return for the care and accommodation provided to most of the home's residents, was a public authority in respect of its provision of that accommodation and care.
Unfortunately, the speeches of the members of the House of Lords in Aston Cantlow and Birmingham City Council are unhelpful as a source of ideas for determining, on any sort of general level, when a body or its functions will be public for the purposes of domestic judicial review. In Aston Cantlow, for example, Lord Scott, without providing any definition of what constitutes a public authority, or indeed any theoretical guidance on the matter whatsoever, claims that the Parochial Church Council was a public authority, in reliance on factors that related very specifically to the nature of the Council.Footnote 55
The other members of the House of Lords in that case adopt a somewhat more principled approach, but one that was of no more assistance. Each of the judges observes that section 6 of the HRA was designed to give domestic effect to Article 34 of the Convention.Footnote 56 It follows from this that a public authority may be either an authority that is itself governmental, or an authority which while not governmental itself, nonetheless exercises some governmental functions along with its non-governmental functions.Footnote 57 The former type of public authority is referred to by the English courts as a core public authority,Footnote 58 and the latter as a hybrid public authority.Footnote 59 But, however useful and desirable the judges' findings are in respect of the application of the HRA, they are entirely unhelpful for determining when a function will be public for the purposes of domestic judicial review.
Neither Lord Hobhouse nor Lord Rodger gives any indication as to when a body will be governmental in either the core or hybrid sense, other than to say that a body or function will not be governmental if it is religious.Footnote 60 And the judges fail, in turn, even to elaborate upon when a body or function will be religious.
Unlike their brethren, Lord Nicholls and Lord Hope in Aston Cantlow refer to certain factors, suggested earlier by Oliver,Footnote 61 by reference to which it can be determined that the body in question is governmental. These include an obligation upon the body to act in the public interest,Footnote 62 the subjection of a body to democratic accountability,Footnote 63 the provision of public funding to the bodyFootnote 64 and the possession by the body of statutory powers.Footnote 65 But, at least to the extent that such factors serve to indicate that a body is a core public authority for the purposes of the HRA, they are of minimal assistance in permitting it to be determined, in the context of domestic judicial review, whether a particular exercise of power is public. The reason why the factors are of such limited assistance, at least as used in the sense referred to above, is that it is well established, in the context of domestic judicial review, that public bodies may exercise private power which is not subject to judicial review.Footnote 66 Hence, although all of the actions of a core public authority will necessarily be public for the purposes of the HRA,Footnote 67 it is not the case, in the context of domestic judicial review, that power exercised by a public body will necessarily be public at all, and certainly not simply by virtue of the fact that the body that is exercising the power is itself public.
One response to this objection would be to propose a more nuanced means of operation for the factors, pursuant to which their presence would be taken not to indicate that the administrative body at large was public but, rather, to suggest that power was public only if it was exercised in respect of specific functions to which the factors pertained. Indeed, Lord Nicholls in Aston Cantlow claims that just such an approach should be adopted to determine whether power exercised by a hybrid public authority is public, although there is not a complete overlap between the factors to which the judge refers for this purpose, and those which were treated as relevant to whether a body is public. According to the judge, factors “to be taken into account” in determining whether power exercised pursuant to the carrying out of a particular function is public include “the extent to which in carrying out the relevant function the body … is publicly funded, or is exercising statutory powers, or is taking the place of central government or is providing a public service”.Footnote 68
The judges in Birmingham City Council adopt an essentially similar approach, referring to a number of factors which, if pertaining to a function, will point towards the function, and power exercised in carrying out the function, being public. These factors include the receipt of public funding,Footnote 69 and the possession of statutory powers, by the body carrying out the function, in relation to the function,Footnote 70 as well as the involvement by the State in the carrying out of the function,Footnote 71 the assumption by the State of responsibility for seeing that the function is performed,Footnote 72 and the fact that the carrying out of the function is in the public interest.Footnote 73
The language employed by Lord Nicholls in Aston Cantlow, and the various judges in Birmingham City Council, makes it clear that the factors operate not so much as determinants of whether the power to which they pertain is public, but rather as indicia,Footnote 74 bearing different weights from case to case, based on the interaction between the constituent element or elements of each indicium, and the facts of the case. Where more than one of these indicia pertains to the power in question, it appears that the court will consider whether their combined effect compels the conclusion that the power is public.Footnote 75 Only a minority of judges in Birmingham City Council refers to indicia that may point the other way, to power being private, and the three indicia mentioned are not in any way elaborated on.Footnote 76
The House of Lords' approach in relying on these indicia, however, is highly problematic. To begin, there is a lack of clarity in respect of a basic and central aspect of its methodology for determining whether power is public in this context. The focus placed by Lord Nicholls in Aston Cantlow and the judges in Birmingham City Council on indicia that will point towards power being public may suggest that there is a presumption, to the contrary, that power will be private. If there were such a presumption then, in turn, the indicia present would have to point sufficiently strongly to the power in question being public before that presumption would be displaced, and the power could be characterised as public; in other words, there would be a threshold of “publicness” that would have to be met by the relevant indicia. But that position is certainly not expressly adopted by the judges in either Aston Cantlow or Birmingham City Council. It is possible, by contrast, that there is no presumption in favour of power being private and no threshold that must be met in terms of the weight pointing towards power being public. If this were the case then power would be public as long as, on balance, the indicia considered by the court pointed towards that conclusion, no matter how modestly. The lack of clarity in respect of just what must be achieved by the indicia in question before the power to which they pertain can be regarded as public has the result that it is difficult to know how the House of Lord's approach would be applied in the context of domestic judicial review.
Furthermore, each of the indicia referred to in Aston Cantlow and Birmingham City Council, whether intended to assist in determining whether a body is public for the purposes of the HRA, and then accorded a modified role, or intended to assist in determining whether a particular function is public for the purposes of the HRA is, in itself, of no assistance, or of only very limited assistance, in permitting the court to determine whether a particular exercise of power may be public. An obligation on a decision-maker to act in the public interest with respect to the carrying out of a particular function, for instance, is much more likely to follow as a consequence of the identification of the function in question as governmental, than it is to be a useful indicium for the identification of the function as governmental. In the absence of provisions in the documents constituting a body expressly to the effect that it must act in the public interest in carrying out the function in question, it is difficult to know how it could be ascertained, in advance of the function's classification as governmental, that it would be under such an obligation.
The indicium pursuant to which a function – and power exercised in the performance of that function – is more likely than would otherwise be the case to be public if the function is carried out in the provision of a public service is similarly unhelpful. On the one hand, if the word “public” in the expression “public service” has the same meaning as in the phrase “public function”, then the indicium is circular. On the other hand, if the word public in the expression “public service” has a different meaning from the word “public” in the expression “public authority” then the court is yet to provide elucidation as to that meaning.Footnote 77 The “taking the place of central government” indicium also potentially contains at least a degree of circularity. Certainly if it was Lord Nicholls' intention with respect to this criterion that a non-governmental body would be more likely than would otherwise be the case to be exercising public power if it were carrying out a function that were in some way essentially governmental, the question would arise as to when a function will be essentially governmental to begin with. It is not going too far to say that that question, in turn, would appear to be closely aligned to the question of whether the function will be public.
Nor, for present purposes, is the statutory power indicium helpful. To the extent that it follows from the application of this indicium that power exercised pursuant to statute is public for the purposes of the HRA, the criterion is uninteresting, given this article's concern with the amenability to review of non-statutory power and the increasing lack of certainty, in the context of judicial review, as to whether statutory power itself is necessarily reviewable.Footnote 78
However, the judges in Birmingham City Council seem to contemplate a different operation for the criterion. The judges appear to be of the view that a function at large, and activities carried out in relation to the function, will be more likely than would otherwise be the case to be public for the purposes of the HRA if the body that carries out the function possesses statutory powersFootnote 79 or statutory powers of a coercive nature,Footnote 80 even if those powers relate only to a particular aspect or aspects of the function in question.Footnote 81 Hence, Baroness Hale and Lord Bingham conclude that the provision of accommodation and care to the elderly was a public function for the purposes of the HRA at least in part because the care home in question possessed the statutory power physically to restrain its residents in certain circumstances.Footnote 82 Lords Scott, Mance and Neuberger, while not accepting that the care home did possess statutory powers of a coercive nature,Footnote 83 said that any possession of such powers in relation to the provision of accommodation and care to the elderly would have contributed to the conclusion that the function was public.Footnote 84 That was the case even though there are many aspects of providing accommodation and care to the elderly in respect of which no necessary or even contingent role would be played by their physical restraint.
It would seem to follow from this broader conception of the statutory power indicium that, for the purposes of the HRA, non-statutory power that is exercised by a body will be more likely than would otherwise be the case to be public, if the power is exercised in relation to a function in respect of which the relevant body possesses statutory powers (pursuant to the view of Lords Bingham, Neuberger and Mance) or statutory powers of a coercive nature (pursuant to the view of Lord Scott and Baroness Hale). However, even viewed in this way, the statutory power indicium is unlikely to be of assistance in determining whether power is public for the purposes of domestic judicial review.
If, as appears to be the case, it is increasingly the courts' view that the nature of power as statutory is not relevant to whether the power is amenable to domestic judicial review,Footnote 85 it is by no means apparent that non-statutory power should necessarily be more likely than would otherwise be the case to be amenable to review simply because it is exercised pursuant to the carrying out of a function to which statutory power pertains, whether or not that statutory power is coercive. And it would be no answer to this concern to argue that it is the coercive nature of the power in question, rather than its source in statute, that results in the increased likelihood of the function to which it pertains being public. There is no suggestion in the common law that power is public, in the sense of being subject to judicial review, simply because the physical restraint of third parties is legally permitted pursuant to its exercise. Hence, for instance, as Oliver points out, parents have certain coercive powers over their children.Footnote 86 Coercive powers in the sense described are possessed, too, by people who successfully rely on the defences of self-defence, defence of others or defence of property in the law of tort. But neither a parent who, for instance, confines a child to its bedroom, nor a person who marches someone off his property after giving the person a warning, would be subject to judicial review in respect of those activities.
There are serious problems, too, with the remainder of the indicia outlined above but not yet considered. If the court were to stipulate that a particular exercise of power could be public only if a threshold of publicness were met, any of the remaining indicia that pertained to a particular case could be accorded only a very modest amount of weight in the determination of whether the relevant power was public. They could only be accorded a very modest amount of weight because, at least in the absence of indicia to the contrary – only three of which were mentioned by only two judges extremely cursorily in Birmingham City Council Footnote 87 – if they were accorded anything more than that, the scope of judicial review would be expanded enormously, a position that it is most unlikely that the courts would countenance.
That there would be such a consequence, if the receipt by a body of public funding in relation to a particular function weighed heavily in favour of power exercised in the carrying out of the function being public, was suggested above in the section concerned with the statutory underpinning test in domestic judicial review. The same result would follow, too, if significant weight were attached to the involvement of the State in the carrying out of a function, or the acknowledgement of responsibility by the State for seeing that a function is performed, both of which encompass an enormous range of activities, plausibly including, but not limited to, the provision of funding in respect of the carrying out of a function.Footnote 88
The scope of review would also be expanded massively if anything other than a very modest amount of weight were accorded to the democratic accountability indicium. In an enormous number of bodies, from work social clubs, to local sporting groups, to university debating societies, those who hold positions of authority are determined by the voting of members. The consequence is that power exercised pursuant to the carrying out of the bodies' functions is subject to democratic accountability. Indeed, given the narrow concerns of such bodies, and the relatively modest number of decisions they are likely to make, it is entirely possible that democratic accountability would operate more effectively with regard to power they exercised than it would with regard to the decisions of the executive government. Ministers and local authorities, for instance, make an enormous number of decisions, often in a number of diverse areas, with the result that it is far less likely that any particular decision will have any impact on voter behaviour. Accordingly, if the democratic accountability of a body played any sort of significant role in determining whether power exercised by that body were public, the activities of a vast number of bodies, not currently regarded as public, would be amenable to judicial review.
That would also be the case if, in determining whether a function and power exercised in performing the function were public, a significant amount of weight were attached to the fact that the function and the activities involved in its being carried out were in the public interest.Footnote 89 It is difficult to dispute the contention of Lord Neuberger in Birmingham City Council that the provision of most commodities, including food, as occurs on a commercial basis, is in the public interest.Footnote 90
A consequence of the very modest weight that could be attached to each of these indicia for determining whether an exercise of power is public is that if only one of the indicia pertained to a particular exercise of power, the court would be unable to conclude that the power was public – the relevant threshold could not be met. Nor would a great deal of assistance be provided by the preparedness of the court to consider the effect of the various indicia in concert. Even assuming, in any particular case, that more than one indicium were to pertain to a particular exercise of power, it is not at all obvious that two or three or even more indicia, each of which individually pointed only weakly towards an exercise of power being public, could have the combined effect of rendering the power in question public.
The position would be even more stark were the court to prefer the alternative approach described near the beginning of this section, pursuant to which there is no presumption of power being private, and a particular exercise of power will be public if, on balance, the relevant indicia point to that conclusion, even if only slightly. In these circumstances it would be difficult for the court to accord any of these indicia any weight at all. In the absence of indicia to the contrary – which could not be supposed to be relevant to every case, if they have a role to play at all – the according of any weight to any of these indicia would result in the power in question being public, because the indicium or indicia present would point to that result, however weakly. The result, again, would be a massive expansion of the scope of judicial review.
Just as the decisions of the House of Lords which have considered the meaning of section 6 of the HRA are of no assistance in determining when power will be public for the purposes of domestic judicial review, nor are two decisions of the Court of Appeal which have considered the meaning of section 6 of the HRA, Poplar Housing and Regeneration Community Association Ltd v. Donoghue Footnote 91 and R. (on the applicaton of Heather) v. Leonard Cheshire Foundation Footnote 92 which were not appealed to the House of Lords. In Poplar Housing the applicant was a housing association that had been created by the London Borough of Tower Hamlets, and which had been the transferee of a substantial portion of the Borough's housing stock, including the flat in which the respondent lived. The respondent had relied on the HRA collaterally to challenge the applicant's attempts to evict her from the flat she was occupying, on the basis that the eviction would contravene the respondent's Article 8 right to respect for her private and family life. In order for any such contravention of the respondent's Article 8 right to render the purported eviction illegal, it was necessary that that applicant be a public authority for the purposes of section 6(3) of the HRA. Accordingly, the issue before the Court of Appeal was whether the applicant was a public authority as a consequence of its provision of accommodation to the defendant being a public function.
In determining that matter, Lord Woolf C.J., on behalf of the court, stated that an act will be public for the purposes of section 6 of the HRA if there is present “a feature or combination of features which impose a public character or stamp on the act”.Footnote 93 In this connection, said the judge, the greater the extent to which the act in question “is enmeshed in the activities of a public body”,Footnote 94 the greater is the likelihood that the act will be public.Footnote 95 Here, the Housing Association had been created by the Borough to be a transferee of the Borough's housing stock, five of the Association's members were also members of the Borough, and the Housing Association was subject the Borough's guidance in its treatment of the defendant.Footnote 96 As a result of these matters the “closeness of the relationship”Footnote 97 between the Housing Association and the Borough – a public body – was such that the actions of the Housing Association in respect of the respondent could be regarded as public.Footnote 98
This “enmeshment” test for determining whether an act will be public for the purposes of section 6 of the HRA, relied on by the court in Poplar Housing, is unsatisfactory for a number of reasonsFootnote 99. As a preliminary point, it must be noted that even if the test could be applied on a principled basis, it could be relied upon in only limited circumstances. The enmeshment test may be employed, if at all, only when the act in question is in some way intertwined with the activities of a body, other than the body which has performed the act, which may be described as public. If the act in question operates quite independently of the activities of another body, which is public, then the enmeshment test can be of no assistance in determining whether or not the relevant act is public. Hence, for instance, the enmeshment test would have been of no assistance in the Aston Cantlow case. The Billesley Parochial Church Council's attempts to recover the costs of repairs to the parish were in no way enmeshed with the activities of another body, whether public or not.
There are also, however, strong reasons for doubting whether the enmeshment test, as articulated by Lord Woolf in Poplar Housing, can be applied on a principled basis.Footnote 100 Hence, the act in question must be enmeshed within the activities of a public body. But as the analysis of the judgments in Aston Cantlow and Birmingham City Council has just demonstrated, existing English jurisprudence does not permit the coherent ascertainment of whether, for the purposes of section 6 of the HRA, a body is a public body of either the core or hybrid variety. Furthermore, it is presumably the case that the enmeshment criterion will operate only if the enmeshing activities are themselves public. There is no reason to suppose that the enmeshment of the activities of one body, in the private activities of another, would render that first set of activities public. While the House of Lords now accepts that all of the activities of a core public authority will be public,Footnote 101 the same is not the case with respect to a hybrid public authority.Footnote 102 A hybrid authority must be capable of engaging in activities which are private since, by definition, not all of the functions of a hybrid public authority will be public. But jurisprudence in relation to section 6 of the HRA does not permit us coherently to determine whether an activity is public, in circumstances where it is not carried out by a core public authority, and nor does jurisprudence in relation to English domestic judicial review.
Moreover, even if it could be ascertained whether the enmeshing activities were public, the test of enmeshment is itself extremely vague. A test pursuant to which an act is more likely to be public, the more closely the act is intertwined with the (public) activities of a public body, provides very little by way of guidance to the courts or potential litigants. Consequently, it is likely that reliance by the courts on the test would result in a deal of inconsistency as judges give effect to their (largely) uninformed intuitions about whether particular acts are (or are not) public. Lord Woolf C.J. comes very close to acknowledging the arbitrary fashion in which the application of the test is likely to operate when he states that such application will provide “no clear demarcation line which can be drawn between public and private … functions”.Footnote 103 Rather, says the judge, whether or not an act is public, pursuant to the application of the enmeshment test, will be “very much” a matter of “fact and degree”.Footnote 104
Interestingly, an English court has relied on the enmeshment test for determining whether activities are public for the purposes of domestic English judicial review.Footnote 105 The criticisms of the enmeshment test made above in the context of the HRA, apply equally to the application of the test in the context of domestic judicial review.
In R. (on the application of Heather) v. Leonard Cheshire Foundation Footnote 106 the issue before the court was whether, in providing accommodation to disabled people on behalf of a local authority, a charitable foundation was performing a public function for the purposes of section 6(3) of the HRA. In deciding that the foundation was not performing a public function the court provided no detailed analysis of when a function would be public for the purposes of section 6. Indeed, the principal basis of the court's decision was its contention that the public funding of a function does not have the result that the function is necessarily public,Footnote 107 an entirely negative criterion. The court did suggest that if in performing a function, a non-public body is “standing in the shoes”Footnote 108 of a public body, then the function may be public in the requisite sense. However, the court provided no guidance as to how it can be ascertained whether a particular body is public in the first place, and nor did it elaborate upon when it may be claimed that one body is “standing in the shoes of another”.
Finally in relation to that which is considered public for the purposes of the HRA, neither the jurisprudence of the European Court of Human Rights on Article 34 of the European Convention, nor that of the European Commission, provides any significant assistance in determining what is public for the purposes of English domestic judicial review. The one relevant decision of the European Court of Human Rights is Holy Monasteries v. Greece Footnote 109. In the case, a number of monasteries challenged an Act which provided for the transfer of a large part of the monastic estate to the Greek State, on the basis that the transfer contravened various Convention Articles. As a preliminary point, the Greek Government claimed that the monasteries were not non-governmental organisations, which was necessary if the monasteries were to bring a claim under article 25 of the Convention (now article 34).
The court rejected the claim that the monasteries were not non-governmental organisations. However, the court's reasoning in making this finding was limited, and it provided minimal guidance as to when a body would be governmental. The court said that a governmental organisation was an organisation “established for public administration purposes”Footnote 110. However, the court did not elaborate upon the phrase “public administration purposes” other than to suggest that such purposes would not encompass purposes that were ecclesiastical, spiritual, cultural or social.Footnote 111
Article 34 has been considered in a number of Commission decisions. However, these are similarly unhelpful. In Rothenthurm Commune v. Switzerland the Commission asserted that local government organisations are governmental organisations for the purposes of Article 25,Footnote 112 but did not provide any principled discussion as to what actually constitutes a governmental organisation. In Ayuntamiento v. Spain the Commission held that local authorities were not non-governmental organisations because they are public bodies which perform public duties.Footnote 113 But the Commission gave no indication as to when, in its view, a body would be a public body, nor as to when a duty would be a public duty.
The (scope of) directives with direct effect
Another possible source of assistance in determining when, for the purposes of domestic judicial review, power will be public, and, therefore, potentially subject to judicial review, may be provided by the jurisprudence, European and English, relating to the direct effect of Community directives.
Article 249 of the EC Treaty states that a directive shall only “be binding … as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods”. Nonetheless, it is well established in Community Law that unimplemented Community directives may, in certain circumstances, have direct effect not against individuals, but against the State or a State entity.Footnote 114
With respect to the direct effect of Community directives, the issue of what constitutes the State, or an entity of the State, is therefore crucial. The matter was considered in Foster v. British Gas where, in determining whether the British Gas Corporation was subject to the direct effect of Community directives, the European Court of Justice came as close as it has so far “to producing a general test”.Footnote 115 According to the Court in Foster, included among the bodies against which the provisions of a directive are capable of having direct effect will be a body, whatever its legal form, which has (i) been made responsible for providing a public service under the control of the State (ii) as a result of a measure adopted by the State and (iii) has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.Footnote 116 It is for the relevant national court to apply these matters “to the circumstances of each case”Footnote 117 to determine whether the body in question may be subject to the direct vertical effect of a directive.
The question that remains is whether the tripartite formulation set forth in Foster, and the interpretations of it in English courts, may be of assistance, in the context of English domestic judicial review, in determining whether a body and the power it exercises is public and, therefore, subject to judicial review.
It is suggested that the formulation is of minimal assistance, not least because the formulation cannot coherently be applied by English courts. The English decisions applying Foster purport to draw a distinction between cases of the same “general type”Footnote 118 as Foster and those that are not of the “same general type” as that case.Footnote 119 It is convenient to analyse the extent to which the tripartite formulation advanced in Foster can coherently be applied by English courts within the framework established by that distinction. However, as will be seen, the distinction itself has not been coherently applied in English law.
Even when the case under consideration is regarded by the court as being of the “same general type” as that in Foster, there will be severe problems with the application of the tripartite formulation enunciated in that case. Hence one of the very elements comprising the formulation set forth in Foster requires that the body in question have “been made responsible … for providing a public service”.Footnote 120 But, for the reasons given above, that which constitutes a public service is not something that can adequately be explained by English law. It is recognised that conceptual difficulties like these did not, when Foster reverted to the House of Lords, prevent Lord Templeman from blithely assuming that the provision of a gas supply to the United Kingdom, is the provision of a public service.Footnote 121 Those adopting a more rigorous approach, however, would not be able to make such an assumption.
The problems with regard to the coherent application of the tripartite formulation enunciated in Foster, even in cases of the same general type as Foster, do not, however, end there. Hence, according to the court in Rolls-Royce, the absence of one of the three factors referred to by the court in Foster will not necessarily be fatal to the characterisation of the body as a State entity.Footnote 122 There will be no fatality, notwithstanding such an absence, as long as there is present “something else, not contemplated by the formula”.Footnote 123 However, what is most noteworthy about this passage is the court's failure to give any indication whatsoever as to what this “something else” might be. In similar fashion, the Court held that even if all of the factors identified by the Court in Foster are present, “something very unusual”Footnote 124 may nonetheless “produce the result that the entity is not to be identified with the state”.Footnote 125 But again, the Court gave no indication at all as to what that “something very unusual” might be. The resulting state of indeterminacy with respect to what constitutes a state entity is entirely consistent with, and, it is suggested, made inevitable by, the absence of a well-developed theory of the State in English law.Footnote 126
It is recognised that the obviation of the need to fulfil all three of the criteria in the Foster formulation, referred to above, may relieve the court of the burden of having to ascertain whether the body in question is providing a public service. However, any assistance that may be derived from holding that not all three of the criteria outlined in Foster must be fulfilled in order that a body be characterised as a State entity is undermined by the court's failure to provide any particulars of that quality which must occupy the place of the absent criterion.
The guidance received from the court as to the approach that should be adopted when the case in question is not regarded by the court as of the same general type as that under consideration in Foster is perhaps even less clear. In National Union of Teachers v. Governing Body of St Mary's Church of England (Aided) Junior School the court held that in cases not of the same general type as that under consideration in Foster, one has regard to the “number of indicia”Footnote 127 that emerges “from the case law”,Footnote 128 keeping in mind that “none of the indicia is conclusive”.Footnote 129 It is not apparent whether the court here is contemplating indicia in addition to those outlined in Foster, and if so, what they are. Moreover, it is not apparent if the presence of any two of the indicia will suffice to permit the categorisation of any body as a State entity, or whether the presence of certain specific indicia, and more than two of them, may be required for certain bodies to qualify as state entities. There remain, of course, the problems associated with what constitutes a public service, if the provision of public service is an indicia under consideration, as, presumably in some cases it will be, as well as the difficulties associated with what constitutes the State.
The uncertain nature of the situation is compounded because, although the court in National Union of Teachers was of the view that the case before it was not of the “same general type” as those considered in Foster and Rolls Royce,Footnote 130 it is unclear what the basis for that difference was. In National Union of Teachers, Schiemann L.J. sought to differentiate the governing body of a school from the companies under consideration in Foster and Rolls Royce on the basis that, unlike the governing body of the school, the companies were concerned with “commercial undertakings in which the government had a stake”.Footnote 131 But the status of British Gas and Rolls Royce as commercial undertakings was irrelevant to their categorisation as, respectively, a State entity and a body that was not a State entity. Neither the Court in Foster nor that in Rolls-Royce relied on the status of the body before it as a commercial undertaking in making its decision. Indeed, as was observed by Blackburne J. in Griffin v. South West Water Services Ltd, at least as far as the formulation advanced in Foster is concerned, the fact “that the body is a commercial concern is … irrelevant”.Footnote 132 Moreover, Schiemann L.J. emphasised that the governing body of the school was “concerned with … the provision of what would generally in the Community be regarded as … a public service”.Footnote 133 But, in Foster, at least, the House of Lords found that British Gas – a commercial concern – provided a public service also.Footnote 134
Therefore, to the extent that the approach applied by the court in National Union of Teachers is different from that applied in Rolls-Royce, it is unclear in what circumstances each approach should be followed. It is altogether apparent that the jurisprudence of England and Europe, for determining whether a body is an entity of the state, is of no assistance in ascertaining whether a body should be subject to domestic judicial review.
CONCLUSION
This article has sought to show that the tests English courts have used so far to determine whether power may be regarded as public by virtue of its nature, for the purposes of judicial review, cannot be applied coherently. It has also argued that the jurisprudence which attempts to define what is public for the purposes of both the Human Rights Act 1998 and the direct effect of Community directives provides very little, if any, assistance to courts in their attempts to determine whether power is public for the purposes of domestic judicial review.
Acceptance of these arguments raises the vital consequential question of whether there are any other tests, upon which the courts might rely, which would permit them to ascertain coherently whether power is public by virtue of its nature. That question cannot be explored in an in-depth fashion here. However, one possibility would be to regard as public, power that is exercised by a person or body in the carrying out of a particular function, where only that person or body performs the function. In these circumstances, someone who might be adversely affected by the exercise of power in the carrying out of the function in question would be unable to choose to deal with an alternate decision-maker. The notion that such power is properly subjected to judicial review has received a degree of support from time to time from judgesFootnote 135 and academicsFootnote 136 who refer to it, in broad non-technical terms, as monopoly power.
An interesting aspect of such a test is that its application would be consistent with the results that the courts have reached in the bulk of past judicial review cases, but in which the courts did not expressly rely on a monopoly power test for the availability of review. Hence, for instance, non-statutory regulatory bodies have been a common target of applicants for review contending that the power sought to be impugned is public because of its nature. It is entirely plausible to argue that where English courts have held themselves to have review jurisdiction over such non-statutory regulatory bodies, the bodies exercised monopoly power in the sense described. The Panel on Take-overs and Mergers, for example, found to be amenable to review in Datafin itself, is the sole body responsible for the regulation of mergers and acquisitions in the City.Footnote 137
Indeed, the need to control what is here referred to as monopoly power can go a long way to explaining why and when the courts may review the exercise of powers that derive from legislation or the prerogative: there is no need to explain and justify the courts' review of the exercise of such power by reference to the source of the power. Perhaps the paradigm case of judicial review arises when a statutory body refuses to give permission to a person or body to engage in an activity – such as driving a car or making an extension to a house – that, in the absence of the permission, would be illegal, and the court examines the legality of that refusal. However, when statutory bodies are provided with the power to grant (or deny) such permission, they are invariably the only bodies granted that power. Hence, the power they wield is monopolistic, in the broad, non-technical sense, described above.
So it would appear then that a monopoly power test would be consistent, in terms of the result obtained, not only with many of those decisions that determine power to be public in reliance on other tests that focus on the nature of the power in question but also with many of those decisions which have held power to be public by virtue of its derivation from statute. If this is so, the adoption of a “monopoly power test” as the foundation of courts' jurisdiction to review the exercise of discretionary power could well bring both greater intellectual coherence to the law, as well as greater predictability to its application, without significantly disrupting existing precedent.
