Public Body/ Function

Question 1

Woolf LCJ in Donoghue v Poplar Housing and Regenration Community Association Limited [2001] EWCA Civ 595

Answer 1

contracted services carried out by a private body for a public body that has a duty to provide them does not make the services ‘automatically’ or ‘inevitably public’ (para 58)

Question 2

Woolf in Poplar Housing (2)

Answer 2

does not want ‘to make a body, which does not have responsibilities to the public, a public body merely because it performs acts on behalf of a public body’ (59)

Question 3

which case made a distinction between organisation that has a public duty to provide a service and the body contracted to perform it?

Answer 3

YL v Birmingham City Council [2007] UKHL 27

Question 4

name TWO cases used in support of private bodies contracted with public services not being classified as PA (public authorities)

Answer 4

YL v Birmingham City Council [2007] UKHL 27
Donoghue v poplar housing and Regeneration Community Association Limited [2001] EWCA Civ 595

Question 5

R v Panel of Takeovers & Mergers, ex parte Datafin [1987] QB 815 obiters/judge comments

Answer 5

1. Lloyd LJ observes that one must ‘look not just at the source of the power but at the nature of the power’ (at 847, emphasis added) to ascertain whether it is essentially a private or a public law duty which is being fulfilled (at 847, 848).
2. Lloyd LJ then elaborated, explaining that we must ask whether ‘the body in question is exercising public law functions, or if the exercise of its functions have public law consequences’ (at 847)

Question 6

what was datafin (1987) about?

Answer 6

Facts:
This case concerned whether the Panel on Take-overs and Mergers could be considered a body exercising public functions, for judicial review. It lacked a ‘statutory, prerogative or common law’ basis for its powers and was not bound ‘in a contractual relationship with the financial market’ (Donaldson MR, at 825).
Decision:
The Court was unanimous that the Panel was indeed performing a public duty and that the nature of its power was necessarily public, and had public law consequences

Question 7

what is datafin contrasted with?

Answer 7

aga khan 1993

Question 8

R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909, Court of Appeal (Civil Division)

Answer 8

• concerned a sanction issued against the Aga Khan by the Jockey Club, because a horse was disqualified from competition because of prohibited substance in urine - but only metabolite and not substance itself or the source. Devastating consequences for aga khan reputation, loss of money, fine and financial value of horse decreased. The Aga Khan asserted that the extensive economic power that the body exercised over a significant portion of society, alongside the interest of the general public in horse racing, meant it must be considered a public body. So called for a judisical review.
• The Court disagreed, finding that although the powers exercised were publicly visible, they were ‘in no sense governmental’ (Bingham MR, at 923).
• The fact that the power extended ‘over a substantial area of economic activity’ was not enough to make it ‘public’ in nature.
• inappropriate for government to intervene in how a sport self-regulates, and Irrelevant how many citizens are interested

Question 9

R v Football Association Ltd., Ex parte Football League Ltd., The Times, 22 August 1991

Answer 9

not concerned with who shall have jurisdiction to decide how to interpret rules, but with the nature of the power being exercised.
‘the ratio of the case relates strictly to the decision made, not the body making it’ (at [1]).
court seeks to identify the nature of the decision and the power used, not the general nature of the body making the decision under said power.

Question 10

section 6 of the HRA 1996

Answer 10

3. “public authority” includes— (a) court, tribunal, (b)or any person certain of whose functions are functions in a public nature, not including HL OR HC or MPs in connection with proceedings in parliament.
4. A person is not public authority by virtue only of 3b if the nature of act is private.

Question 11

what was the case Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank [2003] UKHL 37
about?

Answer 11

Facts:
Received notice from council to repair the chancel of parish church- which infringed rights under article 1 of first protocol
The functions of PCCs were primarily concerned with pastoral & admin matters within the parish & were not wholly of a public nature / were not core public authorities under s.6(1).

Decisions:
HL concluded that PCC couldn’t be regarded as falling in either the PA or hybrid category. Although CofE had special links with central government & performed certain public functions, it was a religious not a governmental organisation & PCCs were part of the means by which the Church promoted its religious mission & discharged financial responsibilities in respect of parish churches.

Question 12

what is a hybrid public body?

Answer 12

Hybrid public body: private organisations or charities that also deliver public services and have duty to public services they offer, not private services.

Question 13

Rv Chief Rabbi, ex p. Wachmann [1993] 1 WLR 1036

Answer 13

body in question must be exercising some kind of regulatory and public function.

held that a judgement emanating from a private authority would be reviewable, if that authority had the power to make judgements which affected the public.

Question 14

list all cases that you would use to prove a body is public?

Answer 14

Wachmann (1995), Football League Ltd (1991), Aga Khan (1993), YL V birmingham cc, poplar housing, datafin (1987), s6 HRA 1996, parochial church council 2003