Public Law Body Under Legislation

What is a public law body under legislation?

s. 7 of Bill of Rights Ordinance in HK (BORO)

“ (1) This Ordinance binds only-

(a) the Government and all public authorities; and

(b) any person acting on behalf of the Government or a public authority.”

The BORO has been held not to have strong horizontal effect. [1]

Therefore, the courts have developed their own means to interpret the legislation and applied common law and other legislation, to ensure compliance with fundamental rights.

s. 6 of Human Rights Act in UK (HRA)

(3) … “public authority” includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature…

but

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3) (b) if the nature of the act is private. “

Public Authority isn’t defined with any precision in HRA, but accordingly, is defined by the nature of its functions and not by the possession of any particular authority or power.

There’re two types of public authority under HRA:

(a) “Standard” or “core” public authorities

They’re those defined by section 6(1) alone. All their functions are public related “government” in the broad sense of the word, have no human rights themselves.

(b) “Functional” authorities

They’re identified under s.6(3)(b).They’re non- governmental organizations which perform public functions, and subject to the HRA in respect of their

public functions but not in respect of any other commercial or charitable activities they may perform (s.6(5)). At least in respect of these non- public functions they have rights under HRA[2]

The criterion used to determine whether an organ is a public authority

There have been two main criteria used by courts to indentify public authority. One is source of power, another is functional, but nowadays, due to the restriction of the former test, we prefer adopting function approach to indentify a public body.

(a) Traditional approach: “Source of powers” Test

In English court, there was a long-standing test that considering the source of power to determine whether a body was public or private. Generally, bodies exercising statutory or prerogative powers would be regards as being public bodies and thus amenable to judicial review.[3]

In Law v National Greyhound Racing Club[4], an authority exercises powers granted to him by contract, the issue is probably not amenable to judicial review. Likewise, R v Lloyds of London, ex parte Briggs[5]was held that a body won’t be regards as exercising public power when exercising powers by virtue of the consensual nature of its membership.

However, there are many restrictions that the judges have held to the traditional view that a public law body was one created by statute or under the prerogative; many of the decisions of powerful private regulatory bodies would have fallen outside the scope of judicial review in this approach.

(b) Modern approach: Public Function test

This preferable test stresses on how a body affects people rather than the scope of prerogative orders, which regarded them as limited to public bodies performing a public duty.

It involves considering, much more widely, whether the body concerned is exercising public functions, rather than solely having regard to whether powers are conferred by statute

According to Section 6(3)(b) of HRA , public authority includes

“ any person certain of whose functions of public nature….”

Therefore anyone, an individual, a business, a charity or a public organization such as City University of Hong Kong or the BBC, can be a public authority if they’re excising public functions.

Increasingly, the courts have decided the questions of whether a body is amenable to review by reference to its functions rather than its power.

However, there’s no definitive test for a public function in this context. In Aston Cantlow[6] the House of Lord said that the matter was to be decided on the facts of each case, but gave guidance to the effect that a body is likely to be performing a public function if it’s

(a) performing a role that would otherwise be performed by the government;

(b) undertaking activities that are publicly funded;

(c) exercising statutory powers;

(d) providing a public service

Application of criterion to determine whether an organ is a public authority

I’m going to discuss a number of decided Hong Kong and UK cases including pre-HRA and post- HRA cases, to illustrate how the courts applied functional test approach to indentify an organ is public body.

I. Pre- HRA cases

In the period before the HRA came into force, the courts have already adopted functional test approach.

UK Cases:

(a) R v Panel on Take-over and mergers, ex parte Datafin plc [7]

It’s a leading case that the court rejected the source of the power as being the sole test of reviewability.

The application of JR about the panel during the course of a contested takeover bid was first rejected at the first instance based on the panel was exercising neither statutory nor prerogative powers.

However, the CA considered the panel was performing a public duty when administering the Code, and as there was no other means readily available by which the legality of its actions might be tested, judicial review would lie in respect of its decision.

The idea that judicial review was limited to governmental bodies was swept aside. It opened up the prospect of judicial review of any organization which had the power to take decisions affecting the public. It’s an example of judicial review operating as a residual means of control.

After this case, JR isn’t only available for authorities whose powers are derived from statute or prerogative but also an authority which is exercising public law functions.

(b) R v Disciplinary Committee of the Jockey Club ex parte Aga Khan

This case is by contrast with Datafin that the applicant sought judicial review of the Jockey Club’s decision and the court ruled that it had no jurisdiction. The relationship between racehorse owners and the Club, and the powers of the Club, derived from agreement between the parties and was a matter of private than public law.

This case clarified the limit of the jurisdiction. When the functions of a body are woven into the framework of public regulation or a system of governmental control, it will be amenable to JR. Moreover, it’s integrated into the system of statutory regulation or is a surrogate organ of government; Hoffmann LJ observed that in Datafin there was a “privatization of the business of government itself.”

Hong Kong Case:

(c) Cheng Kai Man William v Panel on Take-over and mergers & Anor[8]

It was held that it was appropriate for the court to focus on the activities of the panel as a whole and ask, with regard to those activities, whether something had gone wrong in nature and degree which required the intervention of the courts. In particular, the court was concerned as to whether what had happened had resulted in real injustice. If it had, then, the court had to intervene.

(d) Hong Kong Polytechnic University v Next Magazine [9]

By applied BORO, it was held that the university was deemed as public authority.

Against the weak horizontal effect of BORO, Keith J. held at first instance that although there are some members in the university’s governing body were appointed by the government, it wasn’t under control by government. However, under the meaning of s.7 of BORO, it should be considered as public authority.

“… it is not sufficient for it to be entrusted with functions to perform for the benefit of the public ,there must be something in its nature ….it may take public funding, of a measure of governmental control…”

We can see that the university was a statutory corporation, it had a public purpose not performed for profit, conferred degrees recognized by government, and was largely publicly funded, so it should be a public authority.

Post- HRA

The s.6 of HRA makes the important distinction between acts of a public and private nature, but it leaves the definition of this term entirely to the courts, and the courts mostly adopt a narrow view of public authority. Many services before delivered by public authorities are being contracted out .Thus, the number of successful complaint against public authorities seems much less before.

UK Cases:

(a) Poplar HARCA v Donoghue[10]

This is the first case consider the application of the functional public body thoroughly.

The applicant claimed against the authority on the grounds that Poplar was being a functional public authority under s.6 of HRA.

The court gave extensive consideration to the factors which should be investigated in deciding whether a body is a public authority under HRA. One is the Convention wasn’t intended to make non-governmental bodies, acting in accordance with domestic law, directly liable for a breach. Also, it commented that a local authority in privatizing some functions wouldn’t automatically make the actions of the private company public in nature.

The court held Poplar was a functional public body due to its close links with the local authority, despite no transfer of public duties.

We can see that the definition of a public authority under HRA isn’t necessarily determined by the approach of the courts in indentifying bodies and activities subject to judicial review.

(b) Y.L. and Others v. Birmingham City Council and Others[11]

It’s a controversy case that private company carrying out statutory duties of local authorities under contract are not public bodies under HRA.

The various factors were considered in this case. First, whether the state has assumed responsibility for seeing that task is being performed; second, whether there is public interest in having the task undertaken; thirdly, whether the task is supported by public funding; finally, whether the company is taking the place of a public authority

The minor view is the state assumed the council’s responsibility, and has a statutory responsibility to ensure the people with care and accommodation and it related to public interest.

However, the major view is the council is simply carrying on its private business with a customer who happened to be public authorities. The owner of a private care home taking local authority funded residents is in no different position. It is simply providing a service for which it charges a commercial fee.

Hong Kong Case:

(c) Pacific Century Insurance Co Ltd v Insurance Claims Complaints Bureau[12]

The main issues the court had to decide whether the award of the Bureau was subject to judicial review when it was originally a contractual-based body with no statutory underpinning. The court applied public function approach to consider the functions of the Bureau being performed.

It was held that there was a public element that all of Hong Kong’s personal insurance businesses were bound by the scheme, and the Bureau performed a public function of conciliation and arbitration. Therefore, the Bureau was a public authority amenable to JR.

Different Criteria

Due to the width and vagueness of functional, there were some other criteria formed in case law to indentify a public body.

1. But for test

It will consider whether the government will intervene if the authority didn’t exist or provide the service in question.

2. Integration test

This test requires the court look at the context within which the decision making body, and the specific function it fulfills, are located[13]

3. Government Acquiescence/Encouragement:

To investigate the government has acquiesced or encouraged the body’s activity through providing supporting, or has woven the body into the fabric of public regulation or that the body was established “under the authority of government”.[14]

4. Murray Hunt Test

A judicial review shouldn’t depend on the fictional attribution of derivative status to the body’s powers. The relative factors should include:

1. the nature of the interests affected by the body’s decisions,

2. the seriousness of the impact of those decisions on those interests,

3. whether the affected interests have any real choice but to submit to the body’s jurisdiction, and

4. the nature of the context in which the body operates.

The problems relating to the application of the criterion

i. Source of power test

It‘s restrictive for to court to have an adequate supervisory jurisdiction over the authorities, especially for nowadays complex natures of different authorities. Those authorities may be engaging in public function and commercial functions at the same time, so it’s difficult to solely exercise exclusive reliance on source of power test to identify whether a body is functioning within the realm of public law.

ii. Functional test

The report of MPA[15] concluded that the interpretation of “public function” of the courts was “highly problematic”. As I observed, there was a serious gap between the case-law development and the protection which HRA intended to offer.

We can see that many services previously delivered by public authorities are being privatised or contracted out to private suppliers; however the law seems to be out of step to the reality.

In the decided case law, narrow approach adopted by the courts to interpret the meaning of public body totally diminished the chance of the range of vulnerable people to fight for their human rights.

(a) Without clear guidance to identify a functional public authority

There is no single test to define what function of public nature comprise of. Also,

It’s difficult to infer from the decided cases clear guidance of general application to indentify a functional public authority. Although in Datafin, Poplar, the court excluded some factors to indentify public body, it may only help to determine the question in particular cases.

For example, the application of “but-for” test may be problematic, it asked the court to engage in hypothetical considerations of what government might have done, but not actually done, had the decision maker not existed.

Secondly, it’s doubtful for the sufficiency of a body which is only acting in the public interest with no statutory or governmental underpinning. Although De Smith, Woolf and Jowell regards when the functions and the position of the activity implying a duty to act in the public interest, the activities of a private body may be amenable to JR, for example, a private company running a prison,[16] it seems there is no basis for his conclusion found in case law.

Also, Donaldson MR[17] commented:

“I couldn’t find any warrant for equating public law with the interest of the public.”

From the case law, there must be some statutory, prerogative no matter express or implied for the existence of the body or the function in question if it’s to be amenable to JR. Narrowly applying functional test to identify public authority is difficult, if not impossible.

In post-HRA case, Polar has also stated some factors to identify a public authority, like statutory authority for what is done; statutory responsibility imposed on the body regarding the corn functions; true delegation of functions; public funding.

Nevertheless, I regard an authority is subject to statutory regulation in the functional performance doesn’t necessarily indicate a public function and may even militate against it in some circumstances.[18] The extrapolation drawn from regulation is likely to depend on its nature and purpose in any particular cases. Actually, only a part of the framework for the delivery of public service, such as social housing was formed by regulation which may indicate that the regulated functions are public. It will be different where regulation exists to enforce minimum standards on private activities. Therefore, for example, regulation of the media doesn’t render the media activities public.

Funding is also important; however some agencies receiving funding may not be a public body, such as development grants for region.[19]

The legal structure of a body is clearly significant but inadequate, for example, even some government departments may have their internal and private business.

Therefore, it’s not an easy task to find out the answer of whether the act or omission of the body is public or private function without a standard and clear guidance

(b) Contracting out and the “welfare gap”- depriving effective enforcement of individual human rights

In the light of increased reliance by local authorities on private contractors to discharge their statutory duties,[20]It’s arguable the narrow decision by the courts in some cases, likely YL, Polar, Heather v The Leonard Cheshire Foundation[21] mean individuals will have limited redress for breach of Convention rights.

In Costello-Roberts v United Kingdom[22], the court stated that “the state cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals.” And the government has the responsibilities to ensure that the Convention rights are observed in all areas of activity in including those where its emanations such as local authorities devolve responsibility.

In most of the private contractors cases, whether a person can successively enforce their Art.8 rights against a service provider depend on the decision making of the service provider, but there’s little or even no influence by the service users.

Lord Bingham commented in YL that after the enactment of HRA many functions formerly performed by public authorities were now performed by private bodies.

“The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case whichSection 6(3)(b)was intended to embrace.”

Therefore, the decisions of case law opened the possibility of local authorities evading their responsibilities to the people by using private provides.

Therefore, a “welfare gap” was formed that vulnerable people may be unable to bring human rights claims if, as is usual today, the provision of the service, though agreed by local authorities or other public agencies, is actually provided by commercial or charitable organizations under contract. Vulnerable people may find that they duffer degrading treatment (raising issues under Art.3) or that their sense of self-hood and autonomy (involving Art.8) may have been violated if the accommodation they have grown used to over the years is closed.

Suggested solutions

First, there should be an amendment of the HRA or BORO in order to clarify the obligation of those organizations to protect human rights while they’re performing public functions.

Secondly, it’s pragmatic to use terms of the contract to clarify obligation of those private contractor providing public service, and guidance for the identifying public authority under HRA or BORO should be published, in order to protect human rights.

Finally, due to the inconsistency and clear standard of the meaning of public body, there should be a development of the case-law on the meaning of public authorities along lines, in order to develop a much clear criterion to indentify public body. [23]

Conclusion

In fact, “every law has a loophole”, through reflecting on our fault, we can learn from it .Actually, the application of the principle of judicial review play an essential role to safeguard the rights of the individual, and govern the activities of bodies performing public function. In order to move forward to the right destination, the law should keep abreast with the reality by proper amendment to block the loophole

[1] Tam Hing-yee v. Wu Tai-wai 1 HKLR 185; Compared with other countries’ jurisdictions, like Germany and Ireland with strong constitutional horizontality, the BORO of Hong Kong has relatively weak constitutional horizontality.

[2] Clayton and Tomlinson in The law of Human Right (OUP, 2000, para 5.08)

[3] Hong Kong Administrative Law, Michael Ramsden, Anne Scully-Hill, Lexis ,2010

[4] [1983] 2 All ER 300 CA

[5] [1993] 1 176 DC

[6]Aston Cantlow & Wilmcote with Billesley Parochial Church Council v Wallbank [ 2004] 1 AC 546

[7] [1987] 2 WLR699

[8] 1994-1 HKC 390; 1994 HKC LEXIS 578

[9] [1997] HKLRD 514

[10] [2002] QB 48

[11] [2007] 3 W.L.R. 112

[12] [1999] 3 HKLRD 720

[13] Ibid 16

[14] De Smith, Woolf & Jowell’s Principles of Judicial Review, Chapter 3

[15] The meaning of a public authority under the human rights act,7th edition, Great Britain: Parliament:

[16] De Smith, Woolf and Jowell, Judicial Review of Administrative Action, Sweet and Maxwell

[17] in R v East Berkshire Health Authorities ex Walsh [1985] QB 152, 164

[18] Polar, para. 65 (v); Leonard Cheshire, QBD, para 48(ii);CA, para 21

[19] The meaning of a public authority under the human rights act,9th edition, Great Britain: Parliament: Joint

[20] R v Wandsworth LBC ex p [1996] 1 WLR 60

[21] [200 ] All E.R. 936

[22] (1993) 19 E.H.R.R. 112

[23] Ibid 19