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C1/2002/2722
Neutral Citation No: [2003] EWCA Civ 1056
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Field’
Royal Courts of Justice
Strand,
London, WC2A 2LL
Monday 21st July, 2003
Before:
LORD JUSTICE DYSON,
LORD JUSTICE LONGMORE
AND.
SIR MARTIN NOURSE
HAMPSHIRE COUNTY COUNCIL
Appellant
-y-
GRAHAM BEER T/A HAMMER TROUT FARM
Respondent
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2A‘
Tel No:! 3), Fax No
Official Shorthand Writers to the Court)
Ms Gillian Carrington (instructed by Hampshire County Council) for the Appellant
Mr James Maurici (instructed by Messrs Thring Townsend Solicitors) for the Respondent
JUDGMENT
As Approved by the Court
Crown Copyright ©
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Lord Justice Dyson :
1. This appeal raises the question of whether the decision of a private company limited by
guarantee, Hampshire Farmers Markets Limited ("HFML"), is susceptible to judicial
review, and whether this company is a "public authority" within the meaning of section 6 of
the Human Rights Act 1998 ("the 1998 Act"). The decision was made on the 14 November
2001 to reject an application by Mr Beer to be allowed to participate in the 2002 Farmers’
Markets Programme organised by HFML. In addition to seeking to have this decision
quashed, Mr Beer claims damages under the 1998 Act. By a decision dated 25 November
2002, Field J held that the decision was susceptible to judicial review and quashed it. He
also held that HFML was acting as a public authority within the meaning of section 6 of the
1998 Act when it excluded Mr Beer from its markets, He adjourned Mr Beer's claim for
damages, He gave permission to appeal to this court on the grounds that the questions raise
issues of general importance to local authorities who transfer functions to companies.
Hampshire County Council ("HCC") have been joined in these proceedings as an interested
party. The appeal has been brought by HCC. HFML decided not to appeal since it is a
company of limited resources, and was unwilling to expose itself to the uncertainties of
litigation.
Nv
Mr Beer is a producer of trout at Liphook in Hampshire and trades under the name
"Hammer Trout Farm". In 1999, HCC began to organise farmers' markets using the name
Hampshire Farmers' Markets. This was at a time when the farming economy was suffering a
severe downturn. HCC ran three pilot markets in Winchester. These were established
pursuant to section 33 of the Local Government Housing Act 1989 (subsequently repealed).
Section 33(1) empowered a local authority to take such steps "as they may from time to
time consider appropriate for promoting the economic development of their area". Section
33(2) provided that the steps taken could include "participation in and the encouragement
of, and provision of financial and other assistance for (a) the setting up or expansion of any
commercial, industrial or public undertaking — (i) which is to be or is situated in the
authority's area; or (ii) the setting up or expansion of which appears likely to increase the
opportunities for employment of persons living in that area". Corresponding provisions are
now to be found in section 2 of the Local Government Act 2002.
we
Following the success of these pilot schemes, in 2000 HCC organised a programme of thirty
two farmers' markets. These were run for part of the year only and were held at weekends
and on bank holidays. In September 2000, HCC announced a programme of sixty farmers’
markets for 2001, again to be held at weekends and on bank holidays. Those who wished to
participate in the programme were invited to apply to the Farmers' Market manager, Ms
Tessa Driscoll, who was an employee of HCC. Participants had to satisfy three criteria: (a)
all produce to be sold had to be grown, raised, baked or caught in Hampshire or within ten
miles of the border; (b) the stall-holders had to grow and produce the produce themselves;
and (c) no brought—in produce was allowed to be sold.
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4. Mr Beer was accepted by HCC into the Farmers' Market Programme from the outset. About
sixty stall-holders (including Mr Beer) wanted to have farmers’ markets not only at
weekends and on bank holidays as organised by HCC, but also on weekdays. In September
2000, these stall-holders set up the Southern Farmers' Market Association ("SFMA") to
organise weekday markets to run alongside the HCC markets. Mr Beer was elected
chairman of SFMA.
5. Having established Hampshire Farmers' Markets, HCC decided to hand over the running of
the markets to the stall—holders themselves. The farmers and producers were told that HCC
would cease to run the markets in December 2001, but that HCC would help them to set up
a limited company to take over the markets. HFML was incorporated on the 29 December
2000. Its registered office was at HCC's offices at the Castle in Winchester. The company
was set up with the assistance of HCC which included the provision of advice and help with
the documentation by its legal department. In October 2001, the company's registered
address was changed to that of its accountants. The company started operating in January
2002. The company secretary at the time of incorporation was Mrs Frances Stokes, an HCC
employee, who became the company's Business Development Manager and one of its seven
directors, The remaining directors were stall—holders, Ms Tessa Driscoll was seconded
from HCC to the new company until April 2002. Since then she has been employed directly
by HFML. HCC provided further support to the company by allowing it to use a desk and
computer in one of the rooms in HCC's main building in Winchester.
6. In 2001, HCC issued application forms to be completed by stall—holders who wanted to
participate in the 2002 programme of farmers' markets. The criteria and market regulations
were in identical terms to those that had previously been issued by HCC. Mr Beer applied
for a licence to participate in the markets. By its letter dated 14 November 2001, the
company refused his application. The judge held that this decision was taken in breach of
the rules of natural justice. Since there is no appeal from that part of his decision, I do not
propose to explore the reasons for the rejection of Mr Beer's application.
Amenability of HFML to Judicial Review
7. The judge reviewed a number of the leading authorities at paras 14 to 26 of his judgment.
The reasons he gave for concluding that the decision by HFML to exclude Mr Beer from its
markets was amenable to judicial review were as follows:
"27. In my judgment, the decision to exclude Mr Beer from the 2002
Farmers Markets programme by HFML involved a public element
which renders the decision amenable to judicial review. The facts
before me are quite different from those in Servite Houses and
Leonard Cheshire Foundation. It is true that HFML is a private body,
and that there is no statutory underpinning to its role and functions;
nor are its functions woven into a system of governmental control.
However, it is a not-for-profit organisation engaged in promoting
the public interest by facilitating access to trading outlets much
needed by Hampshire's farmers and producers. In substance it
acquired from HCC the assets and goodwill of the Hampshire
Farmers Markets business, and it did so free of charge. It did not and
does not own the sites on which the markets are conducted. These are
public sites owned by local councils whose permission for the use of
the sites for the markets had been granted free of charge to HCC, a
situation which in November 2001 was highly likely to continue as,
in fact, it has done in 2002. The goodwill acquired by HFML
included both the reputation established by Hampshire Farmer
Markets with the public who attended the various markets, and a
ready-made body of stall-holders. The company plainly had in
November 2001 and has today, a privileged position over potential
rival organisers of weekend and bank holiday Farmers Markets held
at the sites operated by HCC. It follows that to this extent Hampshire
farmers and producers were and are dependent on HFML for access
to the markets it organises. Thus, the exclusion of a producer from
those markets was bound potentially to be damaging, particularly if,
like Mr Beer, he had been a stall-holder when HCC ran the markets
and had thereby come to depend on those markets for a significant
part of his livelihood.
28. In my opinion HFML were and are engaged in running what in
substance are public markets to which the public, both buyers and
sellers (especially sellers who have been stall-holders from the
outset) have a common law right of access. This right to access is not
unqualified. It is subject to a power in HFML to regulate and
organise, but the exercise of that power is a public function, and it is
reviewable by the courts.
29. I asked Ms Carrington whether she accepted that decisions by
HCC when it ran the markets to grant or terminate licences had been
amenable to judicial review. With respect to her, she had difficulty in
avoiding an affirmative answer to this question. In my view, on the
basis of the market cases to which I have referred, such decisions by
HCC were plainly reviewable, and not only because HCC was a
public authority exercising a statutory power. Does the fact that the
organisation of the markets has been transferred to HFML in the
manner I have described change the situation? In my opinion not. The
company has stepped straight into the shoes of HCC. The rights of
the public to attend the markets, including in particular the right of an
applicant stall—holder who has been a stall-holder from the outset,
and who satisfies the prescribed criteria and is willing to pay the
prescribed fees, were not extinguished when the undertaking was
transferred to HFML. Accordingly, I hold that the decision of the
HFML Board of 14 November 2001 to exclude Mr Beer from its
markets is amenable to judicial review."
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Summary of the parties' submissions.
8. On behalf of HCC, Ms Carrington submits that there are two principal factors which
militate against the decision being amenable to judicial review. The first is the absence of
any public function being performed by HFML: its function is no more public than that
performed by the owner of a shopping mall, or the organiser of a car boot sale or a
supermarket. It is true that a sector of the public, namely market traders, will be affected by
the decisions of the company. But impact on a section of the public is not sufficient to
render those decisions amenable to judicial review. The relationship between Mr Beer and
HFML was entirely consensual in character.
9. The second is the judge's finding that HFML is a private body with no statutory
underpinning of its role and functions, and that its functions are not woven into a system of
governmental control. It is true that HCC was exercising statutory functions when it
established HFML. But the function of promoting cconomic development in an arca is not
delegable and was not delegated to HFML. There was no statutory underpinning of the role
and functions of HFML, which simply operates markets as does any other market operator.
No control is exercised by HCC over the company. At the material time, Mrs Stokes was
but one of seven directors (there are now nine), and she has never had a controlling vote on
the board. The low level assistance given by HCC to the company is not enough to lead to
the conclusion that the functions of the company are woven into a system of governmental
control.
10. On behalf of Mr Beer, Mr Maurici advances two main arguments. First, he submits that the
fact that HFML were operating a market to which the public had access on public land was,
of itself, sufficient to render the decision amenable to judicial review. He relies on a
number of cases in support of the proposition that bodies which take decisions in relation to
market licences are exercising a public function. I shall refer to these as "the market cases".
They are: R v Barnsley Metropolitan Borough Council , ex p Hook [1976] 1 WLR 1052, R
v Basildon District Council, ex p Brown (1981) 79 LGR 655, R v Wear Valley District
Council, ex p Binks [1985] 2 All ER 699, Rv Durham County Council, ex p Robinson ,
The Times 31 January 1992, and R v Birmingham City Council, ex p Dredger (1994) 6
Admin L R 553. Mr Maurici submits that these authorities show that disputes that arise on
the termination or non-renewal of a licence to trade at a market to which the public has
access are not purely private or contractual matters: they have a public element.
Il. His second principal argument is there were in any event a number of features of the
relationship between HFML and HCC which demonstrate that, in making the impugned
decision, HFML was exercising a public function. I shall refer to some of these features
later.
The authorities
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12. I shall deal with the market cases separately. It is clear from the authorities that there is no
simple litmus test of amenability to judicial review. The relevant principles tend to be stated
in rather elusive terms. There was a time when courts placed much emphasis on the
source , rather than the nature, of the power being exercised by the body making the
impugned decision. If the power derived from statute or the prerogative, then it was a
public body and the decision was amenable to public law challenges. If the source was
contractual, then public law had no part to play. The importance of the seminal decision in
R v Panel on Takeovers and Mergers, ex p Datafin Ple [1987] I QB 815 was its recognition
of the fact that the issue of amenability to judicial review often requires an examination of
the nature of the power as well as its source. Lloyd LJ said at page 847C that, where the
source of the power did not clearly provide the answer, then the nature of the power fell to
be examined:
"If the body in question is exercising public law functions, or if the
exercise of its functions have public law consequences, then that
may, as Mr Lever submitted, be sufficient to bring the body within
the reach of judicial review. It may be said that to refer to "public
law" in this context is to beg the question. But I do not think it does.
The essential distinction, which runs through all the cases to which
we were referred, is between a domestic or private tribunal on the one
hand and a body of persons who are under some public duty on the
other".
13. Lloyd LJ did not explain what he meant by “public law functions". But at page 838E, Sir
John Donaldson MR said:
"In all the reports it is possible to find enumerations of factors giving
rise to the jurisdiction, but it is a fatal error to regard the presence of
all those factors as essential or as being exclusive of other factors.
Possibly the only essential elements are what can be described as a
public element, which can take many forms, and the exclusion from
the jurisdiction of bodies whose sole source of power is a consensual
submission to its jurisdiction".
14. This test of a "public element which can take many forms" is expressed in very general
terms, and of itself provides no real guidance. A similar formulation of the general test has
been propounded in two recent decisions of this court as to the meaning of "public
authority" in section 6 of the 1998 Act to which I shall refer in more detail shortly. In
Poplar Housing Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48, Lord
Woolf CJ said that what could make an act "which would otherwise be private, public is a
feature or a combination of features which impose a public character or stamp on the act".
In R (Heather) v Leonard Cheshire Foundation and another [2002] EWCA Civ 366,
[2002] 2 All ER 936, Lord Woolf referred to the lack of "evidence of there being a public
flavour to the functions [of the body]". The issue in Donoghue and Heather was whether
the bodies whose decisions were the subject of challenge were public authorities within the
meaning of section 6 of the 1998 Act. As Lord Woolf pointed out at para 65(i) of the
judgment of the court in Donoghue, section 6 "is clearly inspired by the approach
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developed by the courts in identifying the bodies and activities subject to judicial review".
No doubt for this reason, it was common ground in oral argument before us that (i) the tests
for a functional public authority within the meaning of section 6(3)(b) and for amenability
to judicial review are, for practical purposes, the same, and (ii) the observations in both
Donoghue and Heather are equally relevant to the application of both tests.
Since the completion of the oral argument, however, the House of Lords has decided the
appeal in Parochial Church Council of the Parish of Aston Cantlow v Wallbank [2003]
UKHL 37. We have had the benefit of further written submissions from counsel as to the
effect of this decision on the appeal in the present case. The issue in Aston Cantlow was
whether the decision of the church council to enforce a lay rector's obligation to meet the
cost of chancel repairs was a private act or the discharge of a function of a public nature
within the meaning of section 6(3)(b). Certain observations were made as to the
relationship between the public functions test in section 6(3)(b) and the test for amenability
to judicial review, and I shall come to these later when I consider whether HFML acted as a
public authority when it decided to exclude Mr Beer from the Farmers' Market Programme.
In my judgment, there is nothing in the speeches in Aston Cantlow which suggests that
what was said in Donoghue and Heather is not a useful guide to amenability to judicial
review. Moreover, and unsurprisingly, their lordships said nothing about the important
market cases to which I refer at paras 20-22 below.
It seems to me that the law has now been developed to the point where, unless the source of
power clearly provides the answer, the question whether the decision of a body is amenable
to judicial review requires a careful consideration of the nature of the power and function
that has been exercised to see whether the decision has a sufficient public element, flavour
or character to bring it within the purview of public law. It may be said with some
justification that this criterion for amenability is very broad, not to say question—begging.
But it provides the framework for the investigation that has to be conducted. There is a
growing body of case—law in which the question of amenability to judicial review has been
considered. From these cases, it is possible to identify a number of features which point
towards the presence or absence of the requisite public law element. I do not propose to
examine many of these authorities. Leaving aside the market cases, it seems to me that it is
sufficient to refer to the two recent decisions which I have already mentioned.
The first is Donoghue. The issue in that case was whether a housing association was a
public authority performing public functions for the purposes of section 6 of the 1998 Act.
The housing association had obtained a possession order evicting the claimant from her
home. She contended that the association was a public authority exercising a public
function, and that her eviction violated her rights under Article 8 of the European
Convention on Human Rights. At para 65 of the judgment of the court, Lord Woolf CJ said:
"In coming to our conclusion as to whether Poplar is a public
authority within the Human Rights Act 1998 meaning of that term,
we regard it of particular importance in this case that:
(i) While section 6 of the Human Rights Act 1998 requires a generous
interpretation of who is a public authority, it is clearly inspired by the
approach developed by the courts in identifying the bodies and activities
19,
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
subject to judicial review. The emphasis on public functions reflects the
approach adopted in judicial review by the courts and textbooks since the
decision of the Court of Appeal (the judgment of Lloyd LJ) in R v Panel
on Take—overs and Mergers, Ex p Datafin ple [1987] QB 815.
Tower Hamlets, in transferring its housing stock to Poplar, does not
transfer its primary public duties to Poplar. Poplar is no more than the
means by which it seeks to perform those duties.
The act of providing accommodation to rent is not, without more, a
public function for the purposes of section 6 of the Human Rights Act
1998. Furthermore, that is true irrespective of the section of society for
whom the accommodation is provided.
The fact that a body is a charity or is conducted not for profit means that
it is likely to be motivated in performing its activities by what it
perceives to be the public interest. However, this does not point to the
body being a public authority. In addition, even if such a body performs
functions, that would be considered to be of a public nature if performed
by a public body, nevertheless such acts may remain of a private nature
for the purposes of sections 6(3)(b) and 6(5).
What can make an act, which would otherwise be private, public is a
feature or a combination of features which impose a public character or
stamp on the act. Statutory authority for what is done can at least help to
mark the act as being public; so can the extent of control over the
function exercised by another body which is a public authority. The more
closely the acts that could be of a private nature are enmeshed in the
activities of a public body, the more likely they are to be public.
However, the fact that the acts are supervised by a public regulatory
body does not necessarily indicate that they are of a public nature. This is
analogous to the position in judicial review, where a regulatory body
may be deemed public but the activities of the body which is regulated
may be categorised private.
The closeness of the relationship which exists between Tower Hamlets
and Poplar. Poplar was created by Tower Hamlets to take a transfer of
local authority housing stock; five of its board members are also
members of Tower Hamlets; Poplar is subject to the guidance of Tower
Hamlets as to the manner in which it acts towards the defendant.
The defendant, at the time of the transfer, was a sitting tenant of Poplar
and it was intended that she would be treated no better and no worse than
if she remained a tenant of Tower Hamlets. While she remained a tenant,
Poplar therefore stood in relation to her in very much the position
previously occupied by Tower Hamlets."
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At para 66, he said that there is no clear demarcation line between public and private bodies
and functions. "In a borderline case such as this, the decision is very much one of fact and
degree". It is necessary to take account of all the circumstances. The conclusion of the
court was that "the role of Poplar is so closely a:
was performing public and not private functions".
The second recent decision is Heather.
similated to that of Tower Hamlets that it
In that case, the claimants were persons to whom
the local authority owed a statutory duty to provide accommodation. It made arrangements
for that accommodation to be provided at public expense by LCF, a charitable foundation.
"35. The matters already referred to, can however, be put aside. In
our judgment the role that LCF was performing manifestly did not
involve the performance of public functions. The fact that LCF is a
large and flourishing organisation does not change the nature of its
activities from private to public. (i) It is not in issue that it is possible
for LCF to perform some public functions and some private
functions. In this case it is contended that this was what has been
happening in regard to those residents who are privately funded and
those residents who are publicly funded. But in this case except for
the resources needed to fund the residents of the different occupants
of Le Court, there is no material distinction between the nature of the
services LCF has provided for residents funded by a local authority
and those provided to residents funded privately. While the degree of
public funding of the activities of an otherwise private body is
certainly relevant as to the nature of the functions performed, by itself
it is not determinative of whether the functions are public or private.
Here we found the case of R (on the application of the University of
Cambridge ) v HM Treasury Case C-380/98 [2000] All ER (EC)
920 at 930, 940-942, sub nom R v HM Treasury, ex p University of
Cambridge [2000] 1 WLR 2514 at 2523, 2534-2535, relied on by
‘son, an interesting illustration in relation to European
tion in different terms to s.6. (ii) There is no other
evidence of there being a public flavour to the functions of LCF or
LCF itself. LCF is not standing in the shoes of the local authorities.
Section 26 of the 1948 Act provides statutory authority for the actions
of the local authorities but it provides LCF with no powers. LCF is
not exercising statutory powers in performing functions for the
appellants. (iii) In truth, all that Mr Gordon can rely upon is the fact
that if LCF is not performing a public function the appellants would
not be able to rely upon art 8 as against LCF. However, this is a
circular argument, If LCF was performing a public function, that
would mean that the appellants could rely in relation to that function
on art 8, but, if the situation is otherwise, art 8 cannot change the
appropriate classification of the function. On the approach adopted in
Poplar Housing and Regeneration Community Association Ltd v
Donoghue [2001] 4 All ER 604, [2002] QB 48, it can be said that
LCF is clearly not performing any public function. Stanley Burnton
J's conclusion as to this was correct."
The market cases
20.
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LCF decided to close the home where the claimants had been living for many years. They
applied for judicial review of the decision. The first issue was whether, in deciding to close
the home, LCF was acting as a public authority exercising functions of a "public nature"
within the meaning of section 6(3)(b) of the 1998 Act. Giving the judgment of the court,
Lord Woolf said at para 35:
It is sufficient to refer to two of the market cases relied on by Mr Maurici. The first is the
well-known case of Hook. The applicant applied to have quashed the decision of the
council to exclude him from trading in the market and to revoke his right to have a stall.
21.
22.
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His application succeeded on the grounds that the decision had been taken in breach of the
rules of natural justice. Ms Carrington submits that this case (and indeed all the market
cases relied on by Mr Maurici: see para 10 above) is distinguishable on the grounds that the
decision was made by a local authority. Moreover, she points out that the market in Hook
had been the subject of grant by royal charter and later a private Act. But I agree with Mr
Maurici that neither of these factors was relied upon by the Court of Appeal as the reason
for quashing the decision on the grounds of breach of natural justice. Lord Denning MR
said that the right of a stallholder to have access to the market was conferred by common
law, and could only be taken away for just cause and then only in accordance with the
principles of natural justice. He said at page 456E: "I do not mind whether the
market—holder is exercising a judicial or administrative function". It is clear that it was
irrelevant that the market—holder was a local authority and that the market was authorised
by royal charter and statute. What was relevant was that the stallholder had the right at
common law to come to a place to which the public had the right of access to sell his
goods. The judgment of Scarman LJ was to similar effect. He emphasised the common law
right in the public to go to market to buy and sell, subject to the statutory regulation of the
exercise of that right by the local authority. At page 1060A, he said:
"Although, therefore, there is a contractual element in this case, there
is also an element of public law: the enjoyment of rights conferred on
the subject by the common law. I think, therefore, on analysis, it is
clear that the corporation in its conduct of this market is a body
having legal authority to determined questions affecting the rights of
subjects".
There is no suggestion here that Scarman LJ attributed any relevance to the identity of the
market—holder (the local authority) or the nature of the market (other than the fact that it
was one to which the public had a right of access at common law).
The second decision is Binks . Here too the market—holder was the local authority. The
applicant was a street trader who operated a hot food takeaway caravan from a market
place. She had no written licence, and operated under what was described as an informal
arrangement with the local authority. Her right to station the caravan in the market place
was terminated without notice. Her application to quash the decision on the grounds that it
had been made in breach of the rules of natural justice succeeded before Taylor J. He
rejected the submission that decisions such as Hook were to be distinguished because the
principles enunciated in them were only to be applied where there is a statutory market or
something akin to a statutory market. In so doing, he relied on a passage in the judgment of
Templeman LJ in Brown (page 667) to the effect that the status of the market was not
relevant to the crucial question whether the stallholder's licence had been validly
terminated. The exercise of the powers (in that case by the local authority) must be
governed by the same principles whether in relation to a statutory market or an unofficial
market managed by the local authority in the interests of the local community.
Having rejected this submission, Taylor J continued as follows at page 703H:
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"Moreover, in the present case the Market Place at Crook is conceded
to be a place to which the public has right of resort at all times. It is
not a highway, but it is nevertheless a place to which the public has a
right of access and on which the council have a discretion whether to
allow street traders or not. During the day, the Market Place is in fact
used for a market. When it is not being so used between prescribed
hours it is used as a public car park for which no charge is made. It
therefore seems to me that the local authority in granting or revoking
licences to street traders to operate in the Market Place are in exactly
the same situation as that envisaged in the Basildon case by all three
members of the Court of Appeal. It seems to me that there is a public
law element in the decisions of the council with regard to whom they
license and whom they do not license to trade in the Market Place."
Public Authority
Summary of the parties' submissions
23.
It is common ground that HFML is not a "core" public authority. It is a "hybrid" authority.
It follows that the relevant question is whether the decision to exclude Mr Beer was a
private act or the exercise of a public function. Both counsel rely on substantially the same
factors in relation to this question as form the basis of their submissions on the amenability
issue. In short, Ms Carrington submits that the act of HFML that Mr Beer seeks to
challenge was not "governmental" in nature, but was of a private character. The assistance
given by HCC to HFML and the current use of public land are minor indicia which are
insufficient to imbue what would otherwise be a private decision with a public stamp. Mr
Maurici submits that the guidance given by their lordships in Aston Cantlow in relation to
hybrid authorities is not significantly different from that given in Donoghue and Heather ,
and that for all the reasons given in relation to the amenability issue, the impugned decision
was made in the exercise of a public function.
The Aston Cantlow decision
24.
Much of the discussion in the speeches in Aston Cantlow is on the question whether the
parish council was a "core" public authority. The only general guidance on hybrid
authorities and what is a public function for the purposes of section 6(3) is to found in the
speech of Lord Nicholls who said:
"11, Unlike a core public authority, a ‘hybrid' public authority,
exercising both public functions and non-public functions, is not
absolutely disabled from having Convention rights. A hybrid public
authority is not a public authority in respect of an act of a private
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nature. Here again, as with section 6(1), this feature throws some
light on the approach to be adopted when interpreting section 6(3)(b).
Giving a generously wide scope to the expression ‘public function in
section 6(3)(b) will further the statutory aim of promoting the
observance of human rights values without depriving the bodies in
question of the ability themselves to rely on Convention rights when
necessary.
12, What, then, is the touchstone to be used in deciding whether a
function is public for this purpose? Clearly there is no single test of
universal application. There cannot be, given the diverse nature of
governmental functions and the variety of means by which these
functions are discharged today. Factors to be taken into account
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 local authorities, or is providing a
public service."
25. Lord Hope considered that the question of public function was fact—sensitive and did not
admit of an answer in the abstract (paras 41 and 63), an approach with which Lord Scott
agreed (para 130). It is perhaps somewhat surprising that there is no reference to
Donoghue or Heather in Aston Cantlow. Ms Carrington submits that these decisions have
been "superseded" by Aston Cantlow . If by "superseded" she means that the two earlier
decisions are to be taken as having been overruled, then I do not agree. As I have said,
apart from what Lord Nicholls said at paras 11 and 12, Aston Cantlow contains no guidance
as to what amounts to the exercise by a hybrid public authority of functions of a public
nature. Provided that it is borne in mind that regard should be had to any relevant
Strasbourg jurisprudence, then the passages which I have quoted from the judgments in the
two earlier cases will continue to be a source of valuable guidance. Indeed, para 12 of Lord
Nicholls' speech is redolent of the flavour of that guidance.
Conclusion
26. I can now state my reasons for concluding that Field J was right to decide that the decision
of HFML which is challenged in these proceedings is amenable to judicial review, and that,
in making that decision, HFML was acting as a public authority.
27. I should start by explaining why, in my judgment, if the decision is amenable to judicial
review, it was by the same token made by HFML acting as a public authority. I accept that
it is possible to conclude that a decision by a public authority is not amenable to judicial
review and vice versa. This point was made very clearly by Lord Hope in Aston Cantlow at
para 52:
"x But, as Professor Oliver has pointed out in her commentary on the
decision of the Court of Appeal in this case, "Chancel repairs and the
Human Rights Act" [2001] PL 651, the decided cases on the
amenability of bodies to judicial review have been made for
purposes which have nothing to do with the liability of the state in
28.
29.
30.
31.
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international law. They cannot be regarded as determinative of a
body's membership of the class of "core" public authorities: see also
Grosz, Beatson, Duffy, Human Rights: The 1998 Act and the
European Convention (2000), p 61, para 4-04. Nor can they be
regarded as determinative of the question whether a body falls within
the "hybrid" class. That is not to say that the case law on judicial
review may not provide some assistance as to what does, and what
does not, constitute a "function of a public natures" within the
meaning of section 6(3)(b). It may well be helpful. But the domestic
case law must be examined in the light of the jurisprudence of the
Strasbourg Court as to those bodies which engage the responsibility
of the State for the purposes of the Convention."
Thus, the domestic case law on amenability to judicial review can be "very helpful". But
reliance on dome: cases must be tempered by, and sometimes yield to, relevant
Strasbourg jurisprudence. This jurisprudence is especially likely to be helpful in
determining whether a body is a core public authority. It is likely to be less helpful in
relation to the fact-sensitive question of whether in an individual case a hybrid body is
exercising a public function.
In the present case, Ms Carrington has shown us no Strasbourg authority which points the
way. Nor has she advanced any reasons peculiar to the public authority issue in support of
the submission that, even if HFML's decision is amenable to judicial review, nevertheless it
was not made by HFML in the exercise of a public function, In my judgment, she was right
not to do so. On the facts of this case, and I would suggest on the facts of most cases, the
two issues march hand in hand: the answer to one provides the answer to the other.
It is important to record the concession by Ms Carrington (in my view rightly made) that, if
the decision to refuse Mr Beer's application had been made by HCC before the
incorporation of HFML, it would have been amenable to judicial review. The reason given
by Ms Carrington for her concession was not that the decision would have denied a person
access to a public market; rather it was that the decision would have been made by a public
body, namely a local authority. In my judgment, the correct reason for the concession is
more than the mere fact that the decision would have been made by a public body. Not all
decisions by local authorities are amenable to judicial review or involve the exercise of
public functions, The reason why I consider that the concession was correctly made is that
the power being exercised by HCC would have had that public element or flavour to which
I have earlier referred. In this regard, the fact that the power was being exercised in order to
control the right of access to a public market is a most important feature.
T return to the decision that was actually made by HFML. It is clear from the market cases
that decisions affecting the right of access to certain types of market may have a sufficient
public element to be amenable to judicial review. There is a distinction between (a) an
unofficial market in respect of which there are no public rights of access and (b) a statutory
market in respect of which public rights do exist. A good example of the former is a car
boot sale held on a person's private land. The paradigm example of the latter is a statutory
or charter market held on land dedicated to public use and to which the public has a right of
access, Where do the markets held by HFML come within the spectrum of markets? It is
true that HFML did not start to operate the markets until January 2002, a few weeks after
32.
33,
34,
35,
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the decision of 14 November 2001. But neither party has suggested that the situation that
obtained at the time of the decision was not likely to continue once HFML took over the
running of the markets, or that it has not done so. The rather exiguous evidence as to the
nature of these markets is not directed specifically at the time of the decision. But the brief
summary that follows of the present position is the best evidence of the situation that existed
at that time.
The markets are held on town centre sites. None of the sites is owned by HCC, but they are
all owned by other local authorities. Ms Stokes says that the markets operated "on town
centre sites in close association with the relevant local authorities". She does not explain
exactly what she means by "close association with the relevant authorities", But she must
mean that HFML and the local authorities who own the sites co-operate in the organising of
the markets. The evidence also discloses that at Winchester, the market stalls occupy a
pedestrianised area and most of the adjacent public car park. The pedestrianised area is used
during the week by a conventional market.
In my view, it is clear from this evidence that these markets cannot be assimilated to the
category of unofficial markets to which the public have no right of access. They are much
closer to the second category to which I have referred, even though they are neither
statutory nor charter markets. Their essential feature is that they are markets held on
publicly owned land to which the public have access.
What flows from this? There is much to be said for accepting the sub
Maurici that, for this reason alone, the decision of 14 November 2001 is amenable to
judicial review and that in making that decision HFML was exercising public functions and
acting as a public authori The decisions in Hook and Binks show that the identity of the
market holder is not decisive, nor is the source of the power to hold the market. What is
critical is whether the market is one to which the public has the right of access. It is this
feature which led Scarman LJ in Hook to speak of the existence of "an element of public
law" which opened the door to the remedy of certiorari for breach of natural justice. It was
the same feature which led Taylor J in Binks to speak of a "public law element". It is
significant that "public element" was the phrase used by Sir John Donaldson MR in Datafin
to describe one of the essential elements of amenability to judicial review.
But I do not base my conclusion that there was a sufficient public element in HFML's
decision of 14 November 2001 solely on the fact that it involved the denial to Mr Beer of
access to a public market. T have already referred to Miss Carrington's concession that, if
the decision had been taken by HCC before HFML had been incorporated, it would have
been amenable to judicial review. This concession brings into sharp focus the need to
examine the relationship between HCC and HFML. I accept the submission of Mr Maurici
that there are several features of that relationship which strengthen Mr Beer's case that the
decision is amenable to judicial review.
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36. First, HFML owes its existence to HCC. The company was set up by HCC using its
statutory powers. It was HCC's Economic Development Office which employed and paid
for the services of Charles Morrison of Business Link Wessex to assist in the setting up of
the company (it was bought "off the shelf"). HCC's in-house Legal Practice undertook the
necessary legal work. In Donoghue , it was a relevant feature which pointed towards there
being a sufficient public element that the housing association was created by the local
authority. By contrast, in R v Servite Homes and the London Borough of Wandsworth, ex p
Goldsmith and Chating [2001] LGR 55, Moses J regarded the fact that Servite was a
“private body which does not owe its existence to Wandsworth" as a factor militating
against its function being within the scope of public law.
37. Secondly, HFML stepped into the shoes of HCC. The phrase "standing in the shoes" of a
public body derives from Heather (para 35(ii)). There is also a reflection of it at para 12 of
Lord Nicholls' speech in Aston Cantlow ("or so taking the place of central government or
local authorities"), The phrase is not a term of art. But it is clear what it means. It connotes
the idea of A performing the same functions as had previously been performed by B, to the
same end and in substantially the same way. It was an important feature of the decision in
Heather that LCF was not performing the statutory functions previously performed by the
local authority under section 21 of the National Assistance Act 1948, It was merely
providing accommodation to the claimants. In the present case, HCC announced the 2002
programme of farmers' markets in 2001 before HFML started operating. They asked that
applications for the 2002 programme be sent to themselves. After 2002, HFML took over
the running of the markets, and ran them (as was always envisaged) in the same way as
HCC had previously run them. It is relevant that the three criteria for admission of farmers
to the markets were the same as those promulgated by HCC when the scheme was first
established. These criteria were devised in what was perceived to be the public interest of
promoting the interests of the local farming community. Ms Carrington drew attention to
the fact that the main objects clause of HEML's memorandum of association was drafted in
wide terms, so that it would be open to the company lawfully to change the criteria for
admission to the markets, and operate them differently from the way they were previously
operated, and indeed not operate markets at all. In theory, this is true. Anything might
happen in the future. But these proceedings are concerned with the lawfulness of the
decision of 14 November 2001. At that time, in so far as HFML was doing anything at all,
it had stepped into the shoes of HCC in relation to these markets.
38. Thirdly, from the date of incorporation of HFML until the time when the company started
operating the markets, and to some extent thereafter, HCC assisted the company in a
number of respects. For several months after incorporation, the company's registered office
was in HCC's offices. The company has at all times been provided with a desk and
computer in one room in HCC's main building in Winchester. It has not yet operated from
anywhere else. HCC agreed to make a discretionary grant to HFML to assist in the
development of the markets. Two HCC personnel have provided important assistance to
HFML, and continue to do so. Mrs Stokes is employed by the company as Business
Development Manager and is one of its directors. She played an influential role in setting
up the company. She chaired the steering group that was established for that purpose. Ms
Driscoll, the company's Market Manager, was employed by HCC until April 2002, when
her employment was transferred to HFML. In November 2001, she was seconded to the
company.
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39. In my view, the combined effect of these three features (or groups of features) is sufficient
to justify the conclusion that the decision of 14 November is amenable to judicial review. I
regard the first two features as being of particular significance. To these must be added the
fact that the decision was one which affected a person's right of access to a public market.
40. What is Ms Carrington able to put into the scales as a counterweight to these points? She
relies strongly on the fact that this is not a case involving the privatisation of the business of
government, or the assimilation of HFML's role into a system of statutory control or
regulation. It is true that HFML is not performing a function of statutory control or
regulation on behalf of HCC. The judge agreed that there is no statutory underpinning of
the company's role and its functions, and that those functions are not woven into a system of
governmental control. In some cases, the absence of such features may point decisively
against amenability to judicial review. But it is necessary to have regard to all the relevant
factors. In this case, T do not consider that the absence of statutory underpinning and the
lack of interweaving into a system of governmental control is a matter of great weight.
HFML was not simply another private company that was established to run markets for
profit. It was established by a local authority to take over on a non-profit basis the running
of the markets that the authority had previously been running in the exercise of its statutory
powers in what it considered to be the public interest.
Al. Ms Carrington also relies on the fact that the relationship between Mr Beer and HFML is
consensual in character. The answer to this point was provided by Scarman LJ as long ago
as 1976 in Hook. There is a consensual element in the case. But for the reasons that he
gave, and for the additional reasons that I have sought to give in this judgment, there was
also a public element too. This is a far cry from the paradigm case discussed in Datafin
where, as in the case, for example, of a private arbitration, the sole source of power is a
consensual submission to jurisdiction.
42, There are some cases which may properly be described as close to the borderline. Lord
Woolf said that Donoghue was such a case. But in my view, that is not so here, It seems to
me that the factors to which I have referred clearly compel the conclusion that the decision
of 14 November 2001 is amenable to judicial review, and that in making that decision,
HFML was acting as a public authority within the meaning of section 6 of the 1998 Act.
For these reasons, I would dismiss this appeal.
Lord Justice Longmore:
43. I agree with the judgment of Dyson LJ. For myself, I consider that the decision of the judge
was correct for each of the two reasons identified by Dyson LJ, each reason being sufficient
in itself to justify his decision.
44, First, the market cases show that if a trader is denied the right to sell his goods in a place to
which the public normally has access, that decision is a decision of public law and is
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amenable to judicial review. I do not think we could decide otherwise without overruling R
v Wear Valley District Council, ex p Binks [1985] 2 All ER 699, So far from overruling it,
we should approve that decision and declare that it is good law.
45. Secondly, the relationship between HCC and HFML is such that, for that reason also, the
decision of HFML to exclude Mr Beer is amenable to judicial review. I agree with the
considerations set out in paragraphs 28 - 30 of Dyson LJ's judgment and regard them as also
justifying Field J's decision.
46, Naturally, the combination of the two reasons makes the judge's decision that much more
secure but, in my view, either reason alone would have been sufficient.
47, T would also like to record my agreement with paragraph 25 of Dyson LJ's judgment in
which he says that the decision of the House of Lords in Parochial Church Council of the
Parish of Aston Cantlow v Wallbank [2003] UK HL 37 has not overruled Poplar Housing
Association Ltd v Donoghue [2002] QB 48 or R (Heather) v Leonard Cheshire Foundation
[2002] 2 All ER 936; these cases continue to give authoritative guidance on amenability to
judicial review
Sir Martin Nourse:
48. Lagree that this appeal should be dismissed for the reasons given by Dyson LJ.