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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
    1. R v A [2001] UKHL 25; [2002] 1 AC 45; [2001] 3 All ER 1; [2001] 2 WLR 1546
    2. Re S (Minors) (Care order: implementation of care plan) [2002] UKHL 10: [2002] 2 All ER 192
    3. Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467; [2003] 2 All ER 593
    4. Ghaidan v Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 All ER 411
    5. Aston Cantlow...Parochial Church Council v Wallbank and another [2003] UKHL 37, [2003] 3 All ER 1213
    6. R (on the application of Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233
    7. Wainwright and another v Home Office [2003] UKHL 53, [2004] 2 AC 406, [2003] 4 All ER 969
    8. YL v Birmingham City Council and others [2007] UKHL 27, [2008] 1 AC 95
    9. R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; [2006] 2 WLR 719
    10. Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R (on the application of Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233

DYSON LJ:

[2] 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 s 33 of the Local Government and 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 s 2 of the Local Government Act 2002.

[3] Following the success of these pilot schemes, in 2000 HCC organised a programme of 32 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 60 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 10 miles of the border; (b) the stallholders had to grow and produce the produce themselves; and (c) no brought-in produce was allowed to be sold.


[4] Mr Beer was accepted by HCC into the Farmers' Market Programme from the outset. About 60 stallholders (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 stallholders 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 stallholders 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 stallholders. 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 stallholders 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....

[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 of Craighead in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and Another [2003] UKHL 37, [2003] 3 WLR 283, at [52]...:

[28] Thus, the domestic case-law on amenability to judicial review can be 'very helpful'. But reliance on domestic 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.


[29] 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.


[30] 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.


[35]... I 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.


[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 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48, 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 Houses and Another ex parte Goldsmith and Another [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 R (Heather and Others) v Leonard Cheshire Foundation and Another [2002] EWCA Civ 366, [2002] 2 All ER 936, at para [35](ii). There is also a reflection of it at para [12] of Lord Nicholls of Birkenhead's speech in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and Another [2003] UKHL 37, [2003] 3 WLR 283 ('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 s 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 HFML'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, insofar 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.

[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.