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13 Jud. Rev. 1 (2008)

handle is hein.journals/judire13 and id is 1 raw text is: [2008] JR

Trends and Forecasts - Practitioners
Dealing with JR's Cutting Edge
Helen Mountfield
Matrix Chambers
1. This article looks at four areas where there have been recent developments in public
law, with potential to cut across many areas of judicial review:
(1) Public authorities and the ambit of the Human Rights Act.
(2) Public law rights to equal treatment and positive equality duties.
(3) Developments in disclosure.
(4) Protective costs orders.
(1) Public authorities and the ambit of the Human Rights Act
2. Many judicial review cases in the past seven years have involved challenges under the
Human Rights Act 1998 (HRA).
3. Hansard statements made when the Human Rights Bill was before Parliament appeared
to suggest that government intended this to cover a multitude of bodies conducting
functions which could be perceived as public, and to include contracting out of func-
tions with human rights implications like care homes.1 Then Home Secretary Jack Straw
said that the Government wanted a realistic and modern definition of the state so as to
provide a correspondingly wide protection against the abuse of human rights .2
4. The engine for this was s. 6 of the HRA, which provides, so far as is material:
It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
(1)  ...
(2) In this section 'public authority' includes:
(a) ...
(b) any person certain of whose functions are functions of a public nature
(5) In relation to a particular act, a person is not a public authority by virtue only of sub-
section 3(b) if the nature of the act is private.
5. This would appear to constitute an inclusive definition of public authority, which
covers both pure public authorities (such as government departments, local authori-
ties and the police) and, in s. 6(3)(b), functional public authorities (organisations with
a mix of public and private functions).
6. However, the courts took a restrictive approach to what counted as a public
function, in cases such as R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ
366 [2002] 2 All ER 936, in which it was decided that a private care home was not
performing functions of a public nature under s. 6(3)(b).
1 See Cooper and Marshall-Williams, Legislating for Human Rights (Hart Publishing, 2000), pp. 80-95.
2 HC Vol. 314, col. 406 (17 June 1998).

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