Pro bono publico

Very interesting news (passed on by the Society of Legal Scholars (and don’t forget the Society’s conference in Durham this September!) regarding ‘public bodies’. Defining what is and isn’t a public body (public authority) is difficult – but is increasingly a crucial issue. (In my own research, the question of the status of bodies like Nominet is an interesting – and unresolved – one). It should interest anyone with an interest in administrative law, in regulation, in law and technology (or any aspect of modern, changing law where contracting out and third-way solutions are in vogue) and so on. It’s also a fundamental question in terms of human rights law, and that’s where it has arisen in the UK.

See, the (UK) Human Rights Act provides (at s 6) that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right.” (Act includes failure to act). It goes on to define public authority as including “(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature” – excluding Parliament and also where “the nature of the act is private”. Therefore, defining a body (and its act or failure to act) as a public authority is a fairly crucial step if you wish to challenge the lawfulness of a decision.

A number of cases (in particular the Leonard Cheshire case) have caused NGOs in particular to express concern about the amount and type of bodies that are excluded from HRA scrutiny. An excellent report was produced by the Joint Committee on Human Rights (full text), and this Bill is the result.

The Bill is simple – it just provides an interpretation for the purpose of s 6 of the HRA (not an amendment to the HRA, thus not opening that particular can of worms!) as follows:

A function of a public nature includes a function performed pursuant to a contract or other arrangement with a public authority which is under a duty to perform that function.

Simple, (probably) effective, and (in my view) right. (However, it wouldn’t solve all problems…)

It’s up for second reading on June 15th, and has been supported by various members of the Joint Committee (the proposer is the chair of the committee). Worth watching. Since proposer Andrew Dismore (a lawyer and a Labour MP) has a record of getting 10-minute rule bills through the House, it may indeed be possible.

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