Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

18.Memorandum from JUSTICE

INTRODUCTION

1. JUSTICE is an all-party, law reform and human rights organisation, whose purpose is to advance justice, human rights and the rule of law. It is the British section of the International Commission of Jurists.

2. JUSTICE welcomes the Committee's inquiry into the meaning of "public authority" under section 6 of the Human Rights Act 1998 (hereafter "HRA").

3. JUSTICE was granted permission to intervene in proceedings before the Court of Appeal in R (Callin and Heather) v Leonard Cheshire (hereafter "Leonard Cheshire")[109] concerning the application of section 6(3)(b) of the HRA. A copy of our intervention in that case is enclosed with this submission. The basis for the intervention was our view that the meaning of "public authority" in section 6 was an issue of broad public importance and fundamental to the application of the HRA generally. The Court referred to JUSTICE's submissions as being "of considerable virtue".[110]

Whether in your view the meaning of public authority under the Human Rights Act, as interpreted by the courts, is the right one?

4. No. In JUSTICE's view, the current meaning given to "public authority" under section 6 HRA is too narrow.

5. There is no controversy over the scope of section 6(1) HRA as it applies to "pure" public bodies acting in their own right, eg a government department or local authority providing accommodation directly to an individual.

6. Similarly, it is common ground that the natural and ordinary language of section 6(3)(b) HRA provides that an otherwise private body may be a "public authority" for the purposes of section 6(1) where it performs a "public function"—what is elsewhere termed a "hybrid" public authority. [111]Section 6(5) provides that such a hybrid body is only a public authority in respect of its public functions, however, and not its private acts.

7. The essential issue then, is when is an otherwise private body deemed to be performing a "public function" within the meaning of section 6(3)(b)? Since "public function" is not defined by the HRA, it is a question of construction to be answered by the courts.

8. In Poplar Housing and Regeneration Community Association Ltd v Donoghue (hereafter "Donoghue"),[112] the Court of Appeal held that the terms "public authority" and "public function" in section 6 HRA, "should be given a generous interpretation".[113]

9. However, while the Court was prepared to interpret "public function" generously, it was unwilling to offer a general test for determining whether a particular function was public for the purposes of section 6(3)(b). Rather, it preferred the view that "there is no clear demarcation line which can be drawn between public and private bodies and functions. In a borderline case . . . the decision is very much one of fact and degree".[114] The Court stated: [115]

is a feature or a combination of features which impose a public character or stamp on the act.

10. Accordingly, the Court confined itself to offering some indicators for when a function might be public for the purposes of liability under the HRA. It noted that the mere fact a public body used the services of a private body to carry out its public duties did not render that private body's actions public in nature. [116]More specifically, it found that "[t]he 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".[117]

11. While JUSTICE considers that the particular conclusion in Donoghue was correct (the housing association was held to be exercising a public function), in our view the Court missed an important opportunity to establish a clear, principled approach to the meaning of "public authority" and "public function" within section 6 of the HRA.

12. The failure of the Court in Donoghue to develop a principled approach was compounded by its decision in Leonard Cheshire. In Leonard Cheshire, it was common ground that:

(i) each Claimants' local authority was under a statutory duty to arrange to provide their accommodation under section 21(1) of the National Assistance Act 1948 ("NAA"); and

118

13. The Court nonetheless found that the Defendant charity providing accommodation to an individual under contract to a local authority pursuant to section 26 NAA "manifestly did not involve the performance of public functions".[119]

14. Specifically, the Court of Appeal concluded that (i) there was "no public flavour" to either the functions of the Defendant charity, or the charity itself; (ii) while it was providing accommodation to the Claimants in pursuance of section26 NAA, it did not itself exercise any statutory powers in doing so. [120]

15. In JUSTICE's view, the Court's approach in Leonard Cheshire was flawed for three reasons: (i) it failed to have regard to the nature of the statutory duty; (ii) it failed to consider whether the Claimants themselves had any choice but to accept the regime of private care; and (iii) it gave insufficient weight to the question of public authorities evading public liability under the HRA by contracting out the discharge of its statutory duties to private bodies.

The nature of the statutory duty

16. First, insufficient attention was paid by the Court to the nature of the statutory duty in question, specifically that it is owed to particular individuals who fall within the criteria of section 21(1) NAA. This is in contradistinction to many statutory duties which are not referable to the interests of particular individuals, but rather are directed towards the promotion of some general end (eg duties on local authorities to further conservation aims, [121]provide best value, [122]or promote economic well-being[123]). In other words, there is an important distinction to be made between private bodies discharging public duties towards general ends, and those which discharge public duties towards particular individuals. It is readily apparent that the duty to accommodate under section 21(1) NAA is one that is directly referable to the rights of an identifiable class of persons.

17. Moreover, a failure to provide accommodation under section 21(1) NAA is capable of engaging not only an individual's rights under Article 8 ECHR but also, in the case of especially vulnerable individuals, their unqualified rights under Articles 2 and 3. Similarly, it is apparent much of the regulation attaching to private bodies providing residential care services (eg the Residential Homes Act 1984) is intended to ensure that appropriate standards of accommodation and care are met.

18. JUSTICE considers the nature and purpose of the statutory duty to be important to the question of whether a private body is performing a "public function" within the meaning of section 6(3)(b) HRA. In our view, the fact that the duty being discharged is one referable to the rights of particular individuals—especially their unqualified rights—makes it more likely that the actions of the private body in discharge of that duty will attract public liability. Similarly, the fact that a private body's activities are subject to regulation, the purpose of which inter alia is to ensure respect for individual rights, is another useful indicator that a private body discharging a statutory duty that engages such rights is performing a "public function". As we noted in our submission to the Court in Leonard Cheshire, the important feature is the manner in which a private body acting in performance of a statutory duty is in a position to exercise `real power' in respect of the individuals concerned: [124]

the key factor in determining whether or not a public function is involved in an area where the activity in question may be being undertaken in a different context for purely commercial reasons (eg in most circumstances private medical provision) is whether or not the body is in fact acting so as to assist in the discharge of the state's role and duties (eg the provision of a free NHS service) with the result that the body in question is exercising real power over third parties.

The unavoidability of the private regime

19. Secondly, it is difficult to reconcile the approach of the Court of Appeal in Leonard Cheshire with the later approach taken by Keith J in R (A) v Partnerships in Care Ltd. [125]Considering the example of a private prison given in de Smith, Woolf and Jowell Judicial Review of Administrative Action,[126] it is apparent that Keith J attached great weight to the fact that the Claimant in R(A)—a mental patient sectioned under the Mental Health Act—had no way of avoiding the regime of private care. Moreover, he found that this degree of unavoidability was what distinguished the discharge of public duties by privately-run prisons and mental hospitals from the discharge of public duties by privately-run residential care homes in Leonard Cheshire:[127]

are admitted by compulsion and not by choice

20. However, it was not the absence of compulsion which was significant in Leonard Cheshire, so much as the absence of choice. Stanley Burnton J's judgment at first instance refers to arrangements relating to one of the Claimants as typical: [128]

Before she was accepted as a long-term resident of Le Court, she lived there for an eight-week trial period. The object of the trial was to see whether she would be accepted by existing residents to join the community, and presumably also for her to decide that she wanted to live there.

21. However, other than the presumption of Stanley Burnton J that the Claimant was free to choose, there is no evidence that she was in a position to do so. Neither the judgment of the High Court nor the Court of Appeal makes reference to the alternatives available to the Claimants, in particular whether the Claimants had the option of living in a residential care home run by their local authority.

22. Nor does the framework of the National Assistance Act 1948 stipulate that local authorities must themselves run some residential care homes in order to provide Claimants with the option of avoiding privately-run facilities.

23. In other words, it is open to a local authority to make arrangements under section 26 NAA to meet all its residential care requirements.

24. In such a position, JUSTICE submits that the mere absence of compulsion is not sufficient to remove the public character from the discharge of a public duty by a private body. The very fact that someone's support has fallen to a local authority under section 21(1) NAA tends to shows that they lack the private means to make appropriate contractual arrangements. There is also the question of competence, which is material when dealing with many recipients of community care, but yet did not appear to be considered by the Court.

25. The reliance of the Court of Appeal on contractual alternatives to Claimants would be attractive were there any evidence that the placement of the Claimants was formally regulated in such a way that would allow for the negotiation of appropriate terms. Unfortunately, the High Court judgment indicates the contractual nexus was largely unwritten: [129]

As is often the case in respect of long-term residents at Le Court, there appears to be no written agreement relating to her residence between Surrey County Council, as her placing/funding authority, and Leonard Cheshire. It is not disputed that there is a contractual agreement between them. That agreement is presumably to be implied from the circumstances and their acts when it was concluded, subject to any subsequent variation.

26. There was evidence of a written licence between one of the Claimants and Leonard Cheshire (para 37). However, there was no evidence that the Claimant herself or her representatives had any involvement in its formation. Since the placement was itself unwritten and by arrangement of the local authority, it seems plausible that the Claimant may have had no knowledge of its terms.

27. The apparent point being relied upon by the Court in Leonard Cheshire, then, was that—unlike patients sectioned under the Mental Health Act or prisoners held in a privately-run prison—persons in community care have freedom of contract and could have contracted differently. As such, it would be inappropriate for the court to confer the quality of "public authority" where this would inhibit the marketplace for community care services (and harm the apparent public interest in local authorities being able to reduce their costs by farming out services).

28. If patients housed under section 21 NAA were given a choice by their local authority as to which care home they entered—one run by the authority itself as against one run privately—then one could more readily agree with the Court's analysis that they had the option of deciding differently.

29. If we accept that the absence of choice is the compelling factor, however, then it is difficult to reconcile the ruling of the Court of Appeal in Leonard Cheshire with that of Keith J in R (A) v Partnerships in Care Ltd or the Court of Appeal in Donoghue:

(i) in all three cases, bodies were contracted to perform certain duties that otherwise fall to local authorities;

Partnerships

(iii) in all three cases, the functions (provision of accommodation, provision of mental health services) are closely regulated by statute;

(iv) in all three cases, the Claimants themselves had little real option to avoid being subject to private contractors in the discharge of their statutory duty.

30. JUSTICE submits that the avoidability (or non-avoidability) of any private regime discharging public duties is a key feature in determining whether it attracts public liability. While it is plausible to distinguish for HRA purposes between public and private regimes where those subject are genuinely free to choose, it is much less so where the individual has no practical option but to accept private provision, eg the supply of accommodation to an asylum seeker or a recipient of income support.

31. If "public authority" is to be interpreted generously, as the Court held in Donoghue, then JUSTICE submits the question of whether a given private regime was avoidable in practical terms must be considered by the courts with anxious scrutiny in each case.

The possibility for evasion of public liability by public authorities

32. Thirdly, the Court of Appeal in Leonard Cheshire failed to give sufficient weight to the possibility of public authorities evading their liability under the Human Rights Act 1998 by contracting out the discharge of its statutory duties to private bodies.

33. Indeed, it was apparent in Leonard Cheshire that the great majority of the Defendant charity's residents were publicly funded.[130]

34. It is relevant to the question of public liability that individuals can arrange for their own care and thereby bypass the provisions of section 21 NAA entirely. However, where the State takes upon the obligation of providing care under section 21, JUSTICE submits it cannot evade its liability for actions arising out of care by farming out responsibility by way of contract.

35. The central flaw in the Court's reasoning appears in the following passage: [131]

If this were a situation where a local authority could divest itself of its Article 8 obligations by contracting out to a voluntary sector provider its obligations under section 21 of the NAA, then there would be a responsibility on the Court to approach the interpretation of section 6 (3) (b) in a way which ensures, so far as this is a possible that the rights under Article 8 of persons in the position of the appellants are protected. This is not, however, the situation. The local authority remains under an obligation under section 21 of the NAA and retains an obligation under Article 8 to the appellants even though it has used its powers under section 26 to use LCF as a provider. In addition the appellants have their contractual rights against LCF in any event. There is also the possible protection which can be provided by the Attorney General's role but this is not a significant factor.

36. With respect, this ignores the extent to which a Claimant's Article 8 rights may be engaged by the particular way in which care is provided under section 21(1) NAA.

37. If it were correct that the substance of the Claimants' Article 8 rights obtained only in the right to a home generally, or the right to be supported generally, then the Court's point would be sound.

38. However, the substance of the claim for community care lay in the provision of support at a particular location: the Claimants' Article 8 rights were engaged by the specific decision to move homes.

39. If it follows that a local authority would be liable for such a decision in respect of patients it supported in its own care home, then it cannot be acceptable for a public authority to evade responsibility for particular decisions by contracting them to a private body.

40. As JUSTICE noted in its submission to the Court of Appeal, this proposition follows from the principle established by the Strasbourg Court that the State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals. [132]

41. It is analogous, too, to the special extension of public liability under Community law to otherwise private acts in order to prevent a state taking advantage of its own failure to implement a directive. [133]And it is consistent with the Canadian approach to the extension of public liability to private bodies for "governmental" activities under section 32 of the Charter of Rights and Freedoms 1982. [134]As La Forest J noted in McKinney v. University of Guelph (whether a university in its capacity as a private employer could be liable as a "government actor" under section 32 of the Canadian Charter): "It would be strange if the legislature and the government could evade their Charter responsibility by appointing a person to carry out the purposes of the statute".[135]

42. JUSTICE submits, then, that a broad and generous approach to the HRA requires the Court to address the particular manner in which the decisions of private bodies discharging public duties impact upon individual rights. The Court in Leonard Cheshire itself accepted that, were there the suggestion of a public authority using private contractors in order to divest itself of HRA obligations, it was under a responsibility to interpret section 6(3)(b) to ensure—so far as possible—that individual rights were protected. [136]In JUSTICE's view, the failure of the Court to consider the particular manner in which the Claimants' rights were engaged can only demonstrate the need for more anxious scrutiny in such cases.

What, in practice, might be expected to be the impact of the definition of public authority applied by the Courts for the protection of human rights?

43. Schematically, the meaning of "public authority" in section 6 HRA helps determine the scope of the Act as a whole. The narrow meaning adopted in Leonard Cheshire reduces the Act's scope, just as the adoption of a broader meaning would expand it.

44. In our submission to the Court of Appeal in Leonard Cheshire, JUSTICE noted that the definition of "public authority" under the HRA was a "problem of great significance" in light of the growing use of "mixed solutions" to public service provision (eg PFIs, PPPs, service tendering), even in traditionally state-run areas such as prisons or hospitals. We noted that "[f]ormerly clearer delineations between the activities of state and private sector are blurring increasingly".[137]

45. In practical terms, the most obvious impact of the court's definition of "public authority" and "public function" under the HRA would be upon the ability of local authorities to contract out ("outsource") their services. Such outsourcing is thought to have clear financial benefits, on the assumption that private bodies are able to deliver services more cheaply and with greater efficiency than public bodies performing the same task. Whatever the truth of the matter, JUSTICE recognises there is clearly a public interest in having local authorities run services cheaply and effectively.

46. The apparent concern, then, seems to be that attaching public liability to private bodies discharging public duties would make private bodies either less willing to undertake public work or insist on being indemnified for the additional liability such work would incur. Either alternative would reduce the benefit to the public that outsourcing is thought to deliver. This concern appears to underlie the reasoning of the Court of Appeal in Donoghue and Leonard Cheshire: [138]

A public body in order to perform its public duties can use the services of a private body. Section 6 should not be applied so that if a private body provides such services, the nature of the functions are inevitably public. If this were to be the position, then when a small hotel provides bed and breakfast accommodation as a temporary measure, the small hotel would be performing public functions and required to comply with the HRA. This is not what the HRA intended.

47. The subtext appears to be that, were small hotels to be subject to the HRA where they provide temporary accommodation on behalf of local authorities, small hotels would simply refuse to accept individuals who were publicly-funded. The example is a useful one, since the practice of local authorities using private accommodation is widespread, especially in areas with an acute shortage of public housing. Nor is the practice limited to local government. As of 31 December 2002, there were 50,070 asylum seekers supported in private accommodation by the National Asylum Support Service ("NASS").[139]

48. JUSTICE also accepts that a purely functional test of "public authority" is problematic, in that it relies on certain assumptions about functions traditionally performed by states, together with the suggestion that some functions may be intrinsically public. While historically the state may have performed certain functions, that is not in itself an argument for extending public obligations to a private body performing those same functions on behalf of the state. Similarly, the evidence of state practice is itself a poor guide to identifying intrinsic public functions: different common law jurisdictions take radically different approaches to the State's role in the provision of education or health services. Even operating from the premise that the state should provide universal health care, for example, does not tell us that all such provision is necessarily public in nature: the Canadian system of providing universal care by way of compulsory insurance does not entail either the federal or provincial governments to run hospitals and employ doctors on a direct basis as the NHS requires. There is something of the naturalistic fallacy in the reasoning that just because a state can or does provide something, that therefore it should. The corollary, however, is also worth emphasizing: merely because an activity may be provided privately does not entail that it can therefore escape public liability. Rather, JUSTICE submits, it is the extent to which the function itself is capable of determining—in an important way—the rights of individuals, that should suggest the need for public liability.

49. In short, JUSTICE recognizes that there are good grounds to be cautious about the extension of public law obligations without proper regard for possible outcomes. Even so, we consider that the importance of ensuring respect for human rights in the provision of public services outweighs the potential difficulties such an extension may involve. If the purpose of the Act is to give further effect to rights and freedoms guaranteed under the ECHR, it seems difficult to see how human rights can be promoted by restricting—as the Court did in "Leonard Cheshire—the number and quality of the bodies that are publicly responsible.

50. We also note the criticism of a broad definition of "public authority" offered by Professor Oliver and relied upon at first instance by Stanley Burnton J in Leonard Cheshire, that, were public liability to be extended to private bodies discharging public functions, then such bodies would themselves be deprived of the protection of the HRA. [140]In JUSTICE's view, this criticism seems wholly misplaced. First, hybrid bodies would have the benefit of the saving provisions in Articles 8-11, as the Court of Appeal itself accepted in Leonard Cheshire[141] Secondly, where a private body is in the position of discharging public duties to individuals, the notion of "deprivation of protection" must be considered in the round. In such a context, JUSTICE questions whether the human rights of a private body engaged in a commercial enterprise could ever be afforded greater weight than those of the individuals who have no choice but to be subject to its activities.

51. In summary, JUSTICE considers there to be a direct link between the breadth of the meaning given to "public authority" in section 6 HRA, and the promotion of a public culture of human rights generally. While the extension of public liability to private bodies discharging public functions may reduce the benefits of outsourcing for public authorities, JUSTICE considers that the extension of respect for rights to be a more important end. JUSTICE also suspects that the burden of public liability would, in most cases, not be as onerous as is sometimes claimed. Similarly, the competitive nature of the market for public sector contracts suggests that those private bodies unwilling to shoulder the burden of public liability will be replaced by those that are. If the economic arguments against extending public liability are to be taken seriously, then it is important that those in favour should also be considered.

What steps, if any, should be taken to address any potential gaps in Human Rights Act protection and accountability, following the Leonard Cheshire case?

52. JUSTICE submits that a three-pronged approach is desirable.

Parliament

53. The Joint Committee's inquiry represents an important opportunity for the legislature to further address how the HRA should be interpreted. While the post-enactment views of the Committee are not themselves admissible in judicial proceedings for the purpose of interpreting legislation, a firm statement by the Committee in favour of a broader definition of "public authority" under section 6 HRA would doubtless draw attention to the issue within both the legal community and the public as a whole. Ideally, such a statement would serve to stimulate debate and inform the deliberations of those responsible when the issue is considered in future.

Judicial

54. The Court of Appeal should reconsider its approach to the meaning of "public authority" under the HRA at the earliest possible convenience. Of course, any such reconsideration depends on the matter being pleaded on appeal in an appropriate case. Similarly, it is hoped that the House of Lords will have regard to the importance of this issue when next considering whether to grant permission to appeal in an appropriate case.

Executive

55. As a first step, the government could itself adopt a clear commitment to a broad definition of "public function" as a means to promoting a human rights culture. JUSTICE notes the Secretary of State for Transport and the Regions was an interested party in Donoghue and the Attorney-General was a party to Leonard Cheshire. In neither case, however, did the Government argue for a broad definition. While the Attorney-General's intervention in Leonard Cheshire was on the basis of his responsibility for charities, JUSTICE considers that his failure to argue a broad definition represented a missed opportunity for the Government to advance the purpose of the HRA "to give further effect to the rights and freedoms" in the ECHR. As part of a renewed commitment to this end, the Attorney-General could undertake to intervene to speak to the importance of a broad definition of "public authority" the next time the issue is raised in proceedings.

56. As a last resort, where the courts fail to adopt a broad approach, the Government should consider introducing amending legislation to establish a broad definition.

Whether any alternative means, apart from section 6 (3)(b), (such as contractual terms) could effectively fill any potential gaps in human rights protection?

57. No. For reasons already discussed above, JUSTICE considers the alternative remedies suggested by the Court of Appeal in Leonard Cheshire to be inadequate.

Accountability of the delegating public authority

58. As already noted, [142]JUSTICE doubts whether holding a delegating public authority to account for the acts of its private agents could be a satisfactory remedy in most human rights cases. In Leonard Cheshire, for instance, the substance of the Claimants' Article 8 complaint was not in respect of the general obligation of their local authorities to provide them with accommodation under section 21 NAA, but in respect of the specific decision of the private body to close the particular care home in which they lived (something over which the relevant authorities had no control). JUSTICE submits that such an absence of direct control likely to be true in the great majority of cases involving the use of private bodies to discharge public duties. It would, after all, defeat the very purpose of outsourcing if a local authority had to retain day-to-day managerial responsibility over the care of patients, etc.

59. Accordingly, while JUSTICE accepts there are likely to be some cases in which proceeding against the delegating authority will provide a sufficient remedy to prevent a breach of rights, it doubts such a cause of action will be adequate in most cases.

Inclusion of human rights protection in terms of contract

60. The inclusion of appropriate contractual terms within agreements relating to the provision of public services were also suggested by the Court of Appeal in Leonard Cheshire as an alternative means of ensuring protection for Convention rights: [143]

If the arrangements which the local authorities made with [the Respondent charity] had been made after the HRA came into force, then it would arguably be possible for a resident to require the local authority to enter into a contract with its provider which fully protected the residents' Article 8 rights and if this was done, this would provide additional protection. Local authorities who rely on section 26 should bear this in mind. Then not only could the local authority rely on the contract, but possibly the resident could do so also as a person for whose benefit the contract was made.

61. This suggestion is curious, particularly given the Court's apparent concern that attaching public liability to private bodies discharging statutory duties would inhibit the ability of local authorities to outsource their functions. It is difficult to see how private contractors would be less reluctant to take on contractual obligations than public obligations. Certainly it is questionable whether, in Leonard Cheshire, the private charity would have been willing to agree terms allowing patients to challenge its commercial decisions (eg closing a care home) on human rights grounds.

62. The more important objections, though, relate to the relative bargaining position of the parties and the issue of privity of contract. First, in JUSTICE's view, the suggestion of the Court of Appeal that a patient could require the local authority to contract on terms that "fully protected" his or her Convention rights appears fanciful (particularly given the care home context). It ignores the practical realities by which most individuals come to be subject to the private provision of public responsibilities, eg the patient sectioned in a private mental hospital, or the asylum seeker dispersed to private accommodation. Just as such regimes are rarely avoidable, so too is it unlikely that somebody subject to a private regime would enjoy equality of bargaining power with the private body. And, as noted before, it is unsatisfactory to leave the task of negotiating such protection to the same public bodies who are themselves concerned to obtain the benefits of outsourcing.

63. Secondly, it is not clear that an individual subject to a private regime will always possess the necessary standing to rely on the contract in question. The position of potential claimants is certainly improved by the coming into force of the Contracts (Rights of Third Parties) Act 1999. However, even read consistently with the provisions of the HRA, it is unlikely that an individual will be able to rely on contractual terms between a public authority and a private body discharging a public duty unless specifically provided by the contract. [144]It is clear "on a proper construction of the contract" it appears that the parties intended the term to be enforceable by third parties. [145]Private bodies would also be able to rely on the usual defences available under contract law, which differ in kind from those available under public law, eg mistake, subsequent impossibility and frustration, etc.

64. While JUSTICE would welcome the inclusion of contractual terms for the benefit of third parties in contracts between public authorities and private bodies discharging public duties, it is sceptical that such a measure itself would be sufficient to close the current "protection gap" brought about by the narrow meaning given to "public authority" by the Court of Appeal.

"Horizontal" application of rights between two private persons

65. JUSTICE welcomes the Committee's invitation to consider the issue of "horizontality" in relation to human rights protection. However, JUSTICE considers that it would be better to address that important issue on its own terms, rather than in the context of the liability of private bodies for performing public duties. We could not hope to do justice to that issue here.

7 May 2003