Chapter 15 Guidance to answering the end-of-chapter questions

1. Do you think the law should make a distinction between the public and the private spheres?

• Think about why the law makes a distinction between the public and private spheres. Why is there an expectation that public bodies will act in the public interest?
• What can a commercial company be expected to do? Do you expect a commercial company to further the public interest?
• What sort of power do public and private companies have over citizens? Think, for example, about whether either have the power to coerce citizens and make decisions affecting their fundamental rights.
• Does everyone agree about the extent to which those exercising a public function should be assessed by a different legal standard from private bodies? See the discussion of different viewpoints on pp. 456–45.

2. Can you explain the meaning of a function of a public nature for the purposes of a non-human rights judicial review case?

• How does Part 54 Civil Procedure Rules define a claim for judicial review?
• Develop this thinking through the way that the courts have analysed whether a body is exercising a public function. What do you remember about the Datafin case?
• What was it about the Panel’s power in Datafin that led the Court of Appeal to decide that it was exercising a public function? Review the explanation by Lord Donaldson MR on p. 459.
• What types of functions will lead a court to find that a body is exercising public functions? Hint: see the subheadings on pp. 460–461, and contrast these with pp. 462–463.

3. Can you give examples of bodies or powers that the courts regard as private and have refused to judicially review?

• What types of bodies were the subject of ex p Football League and ex p Aga Khan?
• How have the courts generally treated the decisions of religious organisations? Try to name some cases and the specific bodies involved to support your answer.
• Will a private body providing services to local authorities usually be considered to be exercising a public function for the purposes of judicial review?
• For help with these see pp. 462–463.

4. Explain the House of Lords’ reasoning in the YL case?

• First, recall the subject of the YL case. This was the case involving the 84-year-old who suffered from Alzheimer’s disease and was a resident of a care home run by a commercial company, Southern Cross Healthcare Ltd.
• Why did the majority of the House of Lords uphold the decision of the lower courts, agreeing that Southern Cross was not carrying out public functions?
• How did the majority distinguish between the provision of care and accommodation on the one hand, and the arrangement of care on the other?
• Was it important that Southern Cross was acting in a private, profit-making capacity?
• How did the majority treat the argument that because some care facilities are provided by public authorities and those residents would benefit from ECHR rights protections, this should be extended to all care homes regardless of their nature?
• Can you name other factors that were important to the decision? See the notes and extract on pp. 472-473 if you are struggling.

5. Do you think the criticism of the courts’ reasoning in the YL case is justified?

• Think about some of the wider concerns guiding the majority in the YL case. What was Lord Scott worried about and what criticisms can be made in relation to those concerns?
• If the facts of YL came before the courts again today, would the same decision be reached? Tip: see s.145 Health and Social Care Act 2008.
• What was the view of the dissenting judges in YL? What did Baroness Hale say was ‘artificial and legalistic’? See pp. 477–478.
• Do you agree or disagree with the views of Palmer and Oliver set out on p. 479?

6. Why can’t any citizen challenge a decision that they disagree with? After all, don’t all citizens have an interest in ensuring the government and public bodies act lawfully?

• Remember that decisions made by public bodies often affect a large number of individuals or groups.
• What would be the risk if there were no restrictions on the people and groups who may bring a claim?
• What are some of the disadvantages of allowing a ‘citizen’s claim’? Take a look at p. 480 for a reminder.

7. Are the different tests of standing for judicial review cases and human rights judicial review cases justified? Refer to the relevant case law in your answer?

• What is the test for standing under the Senior Courts Act 1981 and can you cite the subsection in which it is found?
• What is the test for standing under the Human Rights Act 1998 and what is the section that sets this out?
• Are there differences in those tests? Think about the precise language used. Which test is stricter?
• Can you name any cases in which public spirited individuals or interest groups were granted permission to bring judicial review claims?
• Consider the types of arguments that have persuaded the courts in these cases. For example, what did Sedley J say in R v Somerset County Council and ARC Southern Limited?
• What would have been the consequence if the World Development movement had not brought the claim against the Foreign Secretary’s decision to grant aid for the building of the Pergau Dam?
• Can interest groups bring a challenge under the Human Rights Act 1998?

8. What are the arguments for and against allowing third parties to intervene in court proceedings? Consider the impact of the Criminal Justice and Courts Act 2015 on third-party interventions.

• Remember that a third-party intervention is where the court grants permission to a third party to give an opinion or to provide information to the court. The court has a discretionary power to grant applications for third party interventions.
• One justification is based on the effect of a decision. Is it always the case that a decision affects only the parties before the courts?
• For example, think back to the decision in YL. The dispute arose between a nursing home and a resident supported by her family, but the case raised important principles about the protection of the elderly and the disabled across the UK. Were there third-party interventions in that case?
• Why might the government be concerned about third-party interventions?
• How does section 87 of the Criminal Justice and Courts Act 2015 change the way costs are managed?
• See pp. 488–489 for help with any of these points.

Consider the following problem:

Reclaim is an imaginary organisation providing schooling for children excluded from mainstream school. Reclaim was created in 2004 by several local authorities in south east England. Students at the school are funded by their local authority, although Reclaim also receives significant charitable donations. There are also some students whose fees are paid privately by their parents. Reclaim was intended to help local authorities who were having difficulties fulfilling their statutory obligation to provide a suitable education for all under-16 year olds. Half of the members of the Reclaim board of management are also local authority officials. Reclaim has to comply with the Imaginary (Service Providers) Standards Act 2002. This provides detailed regulation about the running of such schools. All students and parents are asked to sign a ‘Home School Agreement’, by which students agree to attend all classes and be of good behaviour. Samuel, a pupil at the school, has been excluded for poor behaviour. He wants to challenge his exclusion by way of judicial review. Samuel’s lawyer, Miss Mina, thinks the decision can be challenged on the grounds of procedural impropriety as Samuel was denied the opportunity to defend himself. She also thinks that he was been denied the right to education contrary to Article 2 of Protocol No 1 of the European Convention on Human Rights and wants to make a claim under the Human Rights Act. However, Miss Mina is not sure whether Reclaim’s functions are private or public in nature.

Write a fully reasoned opinion for Miss Mina giving your view as to whether or not Reclaim can be the subject of a claim for judicial review including a claim under the Human Rights Act. Refer to the relevant case law on the nature of public functions and public authorities discussed in this chapter.

• Start by identifying the rule. What is the test for whether a body can be subject to a claim for judicial review? Cite the authority and pick out the key words of that test.
• Think back to the factors the courts have placed reliance on in deciding whether a body is public in nature. Hint: see the subheadings on pp. 460–461, and contrast these with pp. 462–463.
• The facts tell us where the school’s funding comes from – does this matter? What do you remember about R v Cobham Hall School, ex p G discussed on p. 465?
• What is the significance of the fact that Reclaim was intended ‘to help local authorities who were having difficulties fulfilling their statutory obligation’ or the fact that ‘[h]alf of the members of the Reclaim board of management are also local authority officials’? Can you remember any cases which involved private bodies helping out local authorities?
• The facts mention a ‘Home School Agreement’ signed by all students and parents. What do you know about how the courts have treated the existence of private agreements or contracts?
• What similarities can you note between this scenario and the facts of YL?
• Will the courts treat the situation differently depending on whether the claim relates to a non-human rights judicial review or whether it is a claim under the Human Rights Act 1998? Think about the different language of the tests and whether the courts have treated the tests similarly or differently.