London & Quadrant Housing Trust v Weaver, R (On the application of)  EWCA Civ 587 (18 June 2009) A recent decision of the Court of Appeal has revisited the vexed issue of the definition of ‘public authority’. The decision warrants attention for a number of reasons. First, the decision acts as clear authority that a social landlord is a public authority, and that the act of terminating the tenancy of a tenant is not a private act and is therefore susceptible to judicial review under the Human Rights Act 1998 (UK) (‘HRA’). Second, the decision highlights the need for clear legislative guidance on what constitutes a ‘public authority’. This is discussed further below.
The decision arose out of a judicial review proceeding brought by Susan Weaver against the London & Quadrant Housing Trust (the ‘Trust’). The Trust is a registered social landlord (‘RSL’). In order to understand the background and implications of the decision, it is necessary to have a basic understanding of the role of RSLs in the provision of social housing. In England and Wales, approximately one half of all social housing is provided by RSLs. RSLs are regulated in various ways by the Housing Corporation; an executive non-departmental public body, which is responsible for ensuring that an RSL is properly managed. The Housing Corporation provides detailed guidance on a number of matters (including, for example, evictions). RSLs typically receive grants from the Housing Corporation in respect of expenditure incurred in connection with their housing functions.
The Trust sought to evict Mrs Weaver, after she was more than eight weeks in arrears. Mrs Weaver challenged the notice of possession on the basis that the Trust had acted in breach of a legitimate expectation arising out of Guidance issued by the Housing Corporation in respect of evictions. She also argued that her eviction amounted to a violation of her rights under art 8 of the European Convention of Human Rights (which enshrines the right to respect for private and family life), however her argument was advanced in such a way that this claim also depended on establishing a legitimate expectation.
The Divisional Court held that there had been no legitimate expectation created, and the claim therefore failed on both grounds. Notwithstanding that it was unnecessary for it to do so, the Court went on to state that the Trust was a public authority under s 6(3)(b) of the HRA, and that the act of terminating the tenancy was not a private act under s 6(5) of the HRA. The Trust, although successful in defending the particular application, appealed on this point.
A note on the decision of the Divisional Court is available at http://www.hrlc.org.au/r-weaver-v-london-and-quadrant-housing-trust-2008-ewhc-1377-admin-24-june-2008.
Lord Justice Ellias (Lord Collins concurring; Rix LJ dissenting) held that the Trust was a hybrid public authority, and considered that the act of eviction did not constitute a private act. The act of eviction by the Trust was therefore amenable to judicial review.
In reaching the decision, Ellias LJ referred to the decisions in YL v Birmingham City Council  1 AC 95 and Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546. His Lordship was critical of the Divisional Court’s focus on the question of whether or not the Trust was a public authority (and he considered that this had been conceded), and felt that the focus of consideration should have been on whether or not the act of terminating the tenancy is a private act. However, his Lordship considered (at ) that ‘[w]hen considering how to characterise the nature of the act, it is in my view important to focus on the context in which the act occurs; the act cannot be considered in isolation simply asking whether it involves the exercise of a private law power or not’.
The Court took into account the fact that the Trust was significantly reliant on public finance, operates in ‘close harmony’ with local government, and could properly be regarded as a ‘government function’. The Court also took into account the fact that the Trust was ostensibly acting in the public interest and had charitable objectives and was subject to regulations designed to render its activities more transparent.
The Court considered that the act of termination was ‘part and parcel’ of determining who should be allowed to take advantage of this public benefit. It rejected the submission of the Trust that because it involves a contractual power, it is to be characterised solely as a private act. On this point, Ellias LJ stated:
This is not an act which is purely incidental or supplementary to the principal function, such as contracting out the cleaning of the windows of the Trust’s properties. That could readily be seen as a private function of a kind carried on by both public and private bodies.
His Honour further noted,
In my opinion, if an act were necessarily a private act because it involved the exercise of rights conferred by private law, that would significantly undermine the protection which Parliament intended to afford to potential victims of hybrid authorities. Public bodies necessarily fulfill their functions by entering into contractual arrangements. It would severely limit the significance of identifying certain bodies as hybrid authorities if the fact that the act under consideration was a contractual act meant that it was a private act falling within section 6(5).
The appeal was accordingly dismissed.
Relevance to the Victorian Charter and Lessons for Australia
This decision highlights the difficulties that have arisen in the United Kingdom as a result of the absence of a clear definition of a ‘public authority’ in the HRA. Largely in response to these difficulties, the Victorian Charter adopted a more prescriptive definition of a ‘public authority’. Section 4 of the Charter contains a more comprehensive definition of ‘public authority’ which, in broad terms, is broken into two categories: core public authorities, and functional public authorities.
The Explanatory Memorandum to the Victorian Charter states that the inclusion of functional public authorities: ‘…reflects the reality that modern government utilise diverse organisational arrangements to manage and deliver government services. The Victorian Charter applies to ‘downstream’ entities, when they are performing functions of a public nature of another public authority’. In the Second Reading Speech to the Bill, the Minister stated that ‘… the obligation to act compatibly with human rights should apply broadly to government and to bodies exercising functions of a public nature’. In contrast to the HRA, s 4(2) of the Charter sets out a list of factors that may be taking into account in ascertaining whether or not a function is of a public nature.
The decision in Weaver provides a clear illustration of the advantage of the Victorian approach to the understanding of what constitutes a public authority. The provision of a non-exhaustive list of factors that a court can take into account is clearly preferable to ambiguous reference to entities performing ‘functions of a public nature’, as reflected in s 6 of the HRA. Recent amendments to the ACT Human Rights Act 2004 further clarify the definition of ‘public authority’ by specifying certain functions that 'are taken to be of a public nature', such as health, education, housing, gas, electricity and water supply.
This guidance remedies a number (although not all) of the interpretative ambiguities inherent in the HRA. In the event that Australia adopts a legislative human rights instrument, the ACT and Victorian approaches to the definition of a ‘public authority’ should be preferred.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/587.html.
Jason Pobjoy is reading for the Bachelor of Civil Law at the University of Oxford. He will commence a PhD in international refugee law at the University of Cambridge in October 2009.