[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hampshire County Council v Graham Beer (t/a Hammer Trout Farm) [2003] EWCA Civ 1056 (21 July 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1056.html Cite as: [2003] EWCA Civ 1056, [2004] WLR 233, [2004] 1 WLR 233 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2004] 1 WLR 233] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Mr Justice Field)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE LONGMORE
and
SIR MARTIN NOURSE
____________________
HAMPSHIRE COUNTY COUNCIL |
Appellant |
|
- and - |
||
GRAHAM BEER t/a HAMMER TROUT FARM |
Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Maurici (instructed by Messrs Thring Townsend Solicitors) for the Respondent
____________________
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Dyson :
Amenability of HFML to Judicial Review
"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 14th November 2001 to exclude Mr Beer from its markets is amenable to judicial review."
Summary of the parties' submissions
The authorities
"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".
"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".
"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 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 plc [1987] QB 815.
(ii) 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.
(iii) 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.
(iv) 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).
(v) 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.
(vi) 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.
(vii) 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."
"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 Mr Henderson, an interesting illustration in relation to European Union legislation 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
"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).
"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
The Aston Cantlow decision
"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 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."
Conclusion
"… 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 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."
Lord Justice Longmore:
Sir Martin Nourse: