24.Memorandum from Morag McDermont, University
of the West of England
SUMMARY AND
FURTHER OBSERVATIONS
1. In the article (published in Modern
Law Review, January 2003) [343]I
argued that the decision in Poplar HARCA v Donoghue
(2001) 33 HLR 823-846 led to a narrow definition of `public
authority'. This conclusion was confirmed when the reasoning of
Donoghue was applied in Leonard Cheshire.
2. One concern that the Donoghue case
brought to the fore was that, for the ODPM and the Housing Corporation,
economic arguments appear to be taking precedence over rights
arguments: both the ODPM and the Housing Corporation strongly
argued against RSLs being considered as public authorities because
of their concern that this could jeopordise RSLs' ability to raise
private finance, and put a halt to the programme of transferring
council properties to RSLs.
3. Another concern raised by the Donoghue
case was that the court did not consider that acting in the
public interest was indicative of a body exercising a public function
(however, the Court of Appeal in Aston Cantlow and Wilmcote
with Billesley Parochial Church Council v Wallbank and
another [2001] All ER 393 appeared to come to a different
conclusion). If this line of reasoning is followed, then the provision
of public services by voluntary organisations may also fall outside
the HRA.
4. In the last two pages of my article I
argue that, if a broad interpretation of "public body"
is adopted, the proportionality test will allow these "public
bodies", in exercising their decision making powers, to weigh
up the rights and interests of individuals against the interests
of the wider communities they serve.
5. In March 2003 the DTI set out a proposal
for a new form of company, a Community Interest Company (CIC)
"whose profits and assets will be used for the public good"
(see Enterprise for Communities: Proposals for a Community
Interest Company, (DTI, HM Treasury and Home Office, 2003):
para 1). CICs would "meet the needs of local communities,
complementing core Government services in areas such as childcare
provision, social housing, leisure and community transport"
(para 10). However, CICs are not intended to be in the "public
sector" (para 30), and so the proposal could extend the type
of bodies that do not come within the ambit of s 6(3) unless a
broad interpretation of "public body" is adopted.
17 April 2003
343 McDermont, Morag, The Elusive Nature of the "Public
Function": Poplar Housing and Regeneration Community Association
Ltd v Donoghue, in the Modern Law Review, January 2003. Back
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