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TOCs are 'public authorities' and must comply with the Human Rights Act. Discuss.

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319321

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This is an extract from a letter I recently sent to a Train Operating Company (TOC) asking them whether or not they considered themselves to by a public authority.

  1. In this extract, where I use the phrase ‘public authority’, I mean a hybrid public authority as defined by Section 6(3)b of the Human Rights Act 1998.
  2. The law in this area is quite complex and having spent about three hours looking at the issue of whether or not a Train Operating Company is a public authority.

  3. I have spent some time reading the authoritative judgements, but for the purposes of this letter and your response, I am only really referring to the points discussed in the document “The Human Rights Act 1998: The Definition of Public Authority” published by the Government in October 2009 and available from the link in the footnote.1

  4. The Court of Appeal defined three factors that should be used when deciding whether or not an organisation is a public authority in the case Poplar Housing and Regeneration Community Association Ltd v Donoghue (2002)2:
Whether the body exercises statutory powers;
Whether the body has special responsibilities to the public; and
The proximity of the relationship between the private body and the delegating “core” public authority.
  1. With regards to the first point raised in Donaghue, a Train Operating Company has a number of statutory powers derived from the Railway Byelaws, the Regulation of the Railways Act etc. These powers include the power to restrict a persons liberty in certain circumstances.

  2. With regards to the second point, a Train Operating Company has a special responsibility to the public to provide a train service in accordance with its franchise agreement and train service specification. It exclusiveively provides train services on behalf of the secretary of state (unless it has the secretary of states permission to do otherwise.

  3. Unlike the care home cases, a Train Operating Company has agreed to provide train services to the public, whereby in the care home cases there was only a contract to provide a service to a particular member of the public. A Train Operating Company's business is solely concerned with providing the service to the public. It has a passenger charter that is enforceable and reference by statue.

  4. In regards to the third point, a Train Operating Company would not have a business without its franchise agreement. The authority has a duty to provide services under the auspices of Railways Act 1993, and is discharging its duty to the public through granting the franchise to a Train Operating Company. A Train Operating Company is therefore acting as a public authority.

  5. Before privatization, Railways were a public service and thus rail services are a public service being delivered by the private sector.

  6. There is no body of evidence or guidance with regards to Train Operating Companies being subject to human rights legislation, indeed thorough searches have produced only a letter from the then Rail Regulator who acknowledged that Railtrack (now Network Rail) may be considered to be a public authority in some circumstances.
1 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228957/7726.pdf.

2 http://www.bailii.org/ew/cases/EWCA/Civ/2001/595.html


So, do you consider that TOC's are public authorities for purposes of compliance with the Human Rights Act 1998 and therefore have a responsibility not to act in a way which is incompatible with a convention right?
 
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Tetchytyke

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Short answer: nope, you're wasting your time.

Long answer: private commercial transactions for the provision of a good or service are not bound by the Human Rights Act, even where the good or service could or previously was supplied by the state. Conveyance by railway is a private commercial transaction between the passenger and the TOC, and so the TOC does not have any obligations as a public authority.

Bonus answer: not letting you travel on an invalid route does not mean they're acting incompatibly with a Convention Right, regardless of whether they are a public body or not.
 

319321

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Short answer: nope, you're wasting your time.

Long answer: private commercial transactions for the provision of a good or service are not bound by the Human Rights Act, even where the good or service could or previously was supplied by the state. Conveyance by railway is a private commercial transaction between the passenger and the TOC, and so the TOC does not have any obligations as a public authority.

Bonus answer: not letting you travel on an invalid route does not mean they're acting incompatibly with a Convention Right, regardless of whether they are a public body or not.

But arresting me?
 

najaB

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So, do you consider that TOC's are public authorities for purposes of compliance with the Human Rights Act 1998 and therefore have a responsibility not to act in a way which is incompatible with a convention right?
The TOCs are private companies operating concessions which are defined by the DfT - effectively they are contractors. To use an analogy, if a new library was built that wasn't DDA compliant, who would be responsible: the architects who designed it, the builders who built it according to the plans, or the local authority who approved the plans and hired the builders?
 

headshot119

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Dare I ask why you are attempting to work out "whether or not they considered themselves to by a public authority."

Is this related to issues you've brought up in previous threads, or a new one?
 

Barn

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I haven't given it much thought, but do bear in mind section 6(5) HRA 1998 which clarifies that, if a body is a hybrid public authority, it is only bound to comply with the HRA 1998 when it carries out acts of a public nature. (Housing associations carry out a mixture of public and private acts, for example).

So the question is probably better phrased as "do TOCs carry out public functions?" rather than "are they public authorities?". No TOC will ever admit to being a public authority generally.

I could probably be persuaded that they might be carrying out public functions when they exercise special statutory powers granted directly to them by legislation. I'm less sure that the mere carriage of passengers is a public function.
 
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Mintona

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For those of us who have no idea what's going on here, and don't have a photographic memory of all users and their posts, any chance of a link?
 

319321

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The TOCs are private companies operating concessions which are defined by the DfT - effectively they are contractors. To use an analogy, if a new library was built that wasn't DDA compliant, who would be responsible: the architects who designed it, the builders who built it according to the plans, or the local authority who approved the plans and hired the builders?

But:

  • they are contracted to provide a service to the public on the behalf of the government;
  • private prisons were specifically defined by the Lord Chancellor during a parliamentary debate as being subject to the Human Rights Act in their dealings with a prisoner, which is analgous to a TOC dealing with a member of the public when they have detained them
 

najaB

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Same issue.
Then I'll repeat what I've said previously and take my leave of this thread: I honestly don't think continuing to pursue this is doing you any good. For the sake of your health, please let it go.
 

headshot119

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Barn

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But:

  • they are contracted to provide a service to the public on the behalf of the government;
  • private prisons were specifically defined by the Lord Chancellor during a parliamentary debate as being subject to the Human Rights Act in their dealings with a prisoner, which is analgous to a TOC dealing with a member of the public when they have detained them

I haven't looked into the prison case, but prison contractors are slightly more than just service providers. The director of a private prison has powers similar to that of a governor of a public prison, has his/her appointment approved by the Secretary of State, and makes decisions that have a real impact on prisoners' lives.

It's not enough to simply be a contractor delivering a public service. As the Donoghue case says in paragraph 58:

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.
 
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319321

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Long answer: private commercial transactions for the provision of a good or service are not bound by the Human Rights Act, even where the good or service could or previously was supplied by the state. Conveyance by railway is a private commercial transaction between the passenger and the TOC, and so the TOC does not have any obligations as a public authority.

True.

But if a person does not have a ticket, there can be no contract. I have excluded some of my letter. Even if a person does have a ticket, when excercsing the power to arrest someone, the fact that a person has a contract with the TOC has no bearing on whether or not the TOC should comply with the human rights act in relation to that arrest?
 

headshot119

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Then I'll repeat what I've said previously and take my leave of this thread: I honestly don't think continuing to pursue this is doing you any good. For the sake of your health, please let it go.

I can only echo najaB here. This issue seems to have been ongoing for nearly 12 months without a resolution that seems to have satisfied you. I urge you to consider the effect this is having on your mental health, and wider life.
 

319321

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I haven't looked into the prison case, but prison contractors are slightly more than just service providers. The director of a private prison has powers similar to that of a governor of a public prison, has his/her appointment approved by the Secretary of State, and makes decisions that have a real impact on prisoners' lives.

So, the decision of a railway officer or servant to prevent a person from leaving a railway station, while falsely accusing them of having an invalid ticket, shouting at them and turning their back on them does not have a massive impact on that persons life?

My Answer: It has had a massive impact on my life.
--- old post above --- --- new post below ---
I can only echo najaB here. This issue seems to have been ongoing for nearly 12 months without a resolution that seems to have satisfied you. I urge you to consider the effect this is having on your mental health, and wider life.

The e Noivember 2014 issue was resolved in February. The June 2016 issue was only three months ago. It has had a massive effect on my already poor mental health. I have no 'life' to speak of.

You might be better off asking the TOC involved to consider the effect that they are having on my mental health. All I wanted to do was get home from a hospital appointment. In their letter of apology for the November 2014 incident they had assured me that all their staff would be properly trained and make simple checks before accusing people of not having a valid ticket. Clearly they lied.
 

Tetchytyke

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For those of us who have no idea what's going on here, and don't have a photographic memory of all users and their posts, any chance of a link?

The OP wants to use a ticket via a walking connection between the two Southend stations that c2c say is invalid, and so there are sometimes issues with revenue protection staff at Southend Central.

319321 said:
But arresting me?

If they are exercising a public function then there may be an argument that they are bound by the Human Rights Act. The provision of conveyance by railway is not a public function, it is a private commercial transaction.

If they detain you then they are exercising their powers under the Regulation of Railways Act 1889 and if they deny you travel they are exercising their powers under the Railway Byelaws. These are statutory powers and there is an argument they are therefore a public function, and therefore bound by the HRA.

The HRA Article 5 allows lawful detention if there is suspicion of having committed an offence. The issue is whether detention is lawful. RoRA allows authorised persons on the railway to detain people if they have not paid their fare or cannot show a valid ticket, until they can be "conveniently brought before some justice". Unlike the Byelaws, this is not a "reasonable belief" that the ticket is invalid, it must be that the ticket is invalid.
 
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DarloRich

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Short answer: nope, you're wasting your time.

Long answer: private commercial transactions for the provision of a good or service are not bound by the Human Rights Act, even where the good or service could or previously was supplied by the state. Conveyance by railway is a private commercial transaction between the passenger and the TOC, and so the TOC does not have any obligations as a public authority.

Bonus answer: not letting you travel on an invalid route does not mean they're acting incompatibly with a Convention Right, regardless of whether they are a public body or not.

This. Give it up.
 

daikilo

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But:

  • they are contracted to provide a service to the public on the behalf of the government;
  • private prisons were specifically defined by the Lord Chancellor during a parliamentary debate as being subject to the Human Rights Act in their dealings with a prisoner, which is analgous to a TOC dealing with a member of the public when they have detained them

The private prison argument is a rather good explanation as the prisoners are their "at her Majesty's pleasure" i.e. because the governments legal system has put them there.

Everyone is free to get on or off a train (at a station) when they wish provided they have a valid ticket (or equivalent) and respect the conditions attached to it. If you are detained for leaving a shop with goods that you have not paid for, it does not make the shop a public authority.
 

319321

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If they detain you then they are exercising their powers under the Regulation of Railways Act 1889 and if they deny you travel they are exercising their powers under the Railway Byelaws. These are statutory powers and there is an argument they are therefore a public function, and therefore bound by the HRA.

Thank you for acknowledging that there is a good argument here.

But there are the three fails - I must have failed to produce a ticket, failed to pay for a ticket and failed to give my name and address. I produced a valid ticket so his arrest was unlawful. In any event, he failed to ask me for my name and address either.

Which railway byelaw allows a member of staff to deny travel to a passenger with a valid ticket where the passenger is committing no other breach of any byelaw?
--- old post above --- --- new post below ---
The private prison argument is a rather good explanation as the prisoners are their "at her Majesty's pleasure" i.e. because the governments legal system has put them there.

Everyone is free to get on or off a train (at a station) when they wish provided they have a valid ticket (or equivalent) and respect the conditions attached to it. If you are detained for leaving a shop with goods that you have not paid for, it does not make the shop a public authority.

The difference between a TOC detaining passengers for not having a valid ticket and a shop secuirty guard detaining someone for theft is that the power to detain someone for not having a valid ticket is given to Railway Officers and servants only, rather than the public at large.

The is because SOCPA 2005 only allows members of the public to perform an arrest for an indictable offence for which the sentence is equal to or greater than two years imprisonment.
 

DarloRich

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Go and pay for counsels opinion and bring a case before the court. We cant give you anything other than non expert gut feeling.
 

Tetchytyke

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Which railway byelaw allows a member of staff to deny travel to a passenger with a valid ticket where the passenger is committing no other breach of any byelaw?

The Railway Byelaws provide for a "reasonable belief" that the ticket is invalid or another Byelaw is being breached. They can refuse to let you enter the platform, or they can order you to leave the premises, if they have a reasonable belief that your ticket is not valid.

RoRA does not provide for a "reasonable belief", so if the ticket is actually valid there may be an issue if they use their powers under RoRA to detain. However c2c have explicitly and repeatedly told you that the ticket is not valid for travel from Southend Central, so they have the right to detain you.
 
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AlterEgo

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I can only echo najaB here. This issue seems to have been ongoing for nearly 12 months without a resolution that seems to have satisfied you. I urge you to consider the effect this is having on your mental health, and wider life.

This, very much.
--- old post above --- --- new post below ---
So, the decision of a railway officer or servant to prevent a person from leaving a railway station, while falsely accusing them of having an invalid ticket, shouting at them and turning their back on them does not have a massive impact on that persons life?

My Answer: It has had a massive impact on my life.

Storm in a teacup.

You need to gain sense of perspective and a remove your sense of victimhood.

Please let this go, for your sanity.
 

jopsuk

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Go and pay for counsels opinion and bring a case before the court. We cant give you anything other than non expert gut feeling.

Oh so very much this. We are not qualified lawyers, our opinion here is little more than meaningless.
 

Tetchytyke

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Go and pay for counsels opinion and bring a case before the court. We cant give you anything other than non expert gut feeling.

This and a thousand times this.

All we can tell you is what we reckon. And some of us (DaveNewcastle) are more informed than others. It's a nice discussion but it is meaningless. We're not lawyers.

As for more practical advice, for heaven's sake just drop it. You have been told the ticket is not valid. Buy the ticket that you have been told is valid. If you feel strongly then seek to recover the difference through court, as happened with Myers v First Capital Connect. I notice you were intending to do this, am I right in presuming that you lost?
 

319321

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The Railway Byelaws provide for a "reasonable belief" that the ticket is invalid or another Byelaw is being breached. They can refuse to let you enter the platform, or they can order you to leave the premises, if they have a reasonable belief that your ticket is not valid.

RoRA does not provide for a "reasonable belief", so if the ticket is actually valid there may be an issue if they use their powers under RoRA to detain. However c2c have explicitly and repeatedly told you that the ticket is not valid for travel from Southend Central, so they have the right to detain you.

Err, no.

They admitted the ticket was valid. The ticket has been valid on the route I took since the concept of permitted routes was introduced, both under the 'shortest route rule' and under the 'mapped routes' until November 2013, and then under the 'shortest route only' rule, although as the Department for Transport never granted permission for the mapped routes to be removed, I argue that change to the routeing guide was unlawful.

There can be no reasonable belief that a ticket is invalid if the National Rail Journey Planner says it is valid.
--- old post above --- --- new post below ---
You have been told the ticket is not valid.
.................
I notice you were intending to do this, am I right in presuming that you lost?
I am PM'ing you as I think you got the wrong end of the stick here.

Rochford to London Zones 1-6 ANY PERMITTED has been permitted since the introduction of permitted routes. It was a reasonable route in BR days as the fares show there was no fares anomaly (there is no higher fare between Rochford and Upminster on the route I was taking) and it was also the quickest route (Southend Airport and West Ham stations hadnt openened and hardly any trains stopped at Barking).

It was permitted under the mapped routes until November 2013. There was no permission granted for the mapped routes to be removed.

If you search any journey planner for a travelcard from Rochford to Upminster more than half the options it will give you will be going via Southend.

With regard to the November 2014 incident, after Transport Focus handed the case back to me I filed a court claim for £1570. I then had a meeting with the Head of Customer Experience and a lackey at which my psychiatric nurse acted as an appropriate adult.

They offered an unreserved apology for how I had been treated as part of a settlement. I agreed to keep the amount confidential. When their letter of apology arrived, it was subject to confidentiality. I was not happy with this so they decided to defend the claim.

There was some to and fro between myself and their solicitors. Eventually, they offered a settlement that included a public letter of apology, which unreservedly acknowledged the validity of the ticket; included a promise that they would ensure that their staff were trained properly; and that simple checks would be made in the future before treating passengers as though they had invalid tickets. I am bound by court order not to discuss the settlement other than the letter of apology I recieved.

On 16 June I had a hospital appointment to attend. I got a super off-peak ticket which meant I could not come back via Liverpool Street after 4pm. My appointment overran so I didnt get to Liverpool Street until about that time. I checked my ticket was still valid on the Fenchurch Street route then proceded to make that journey. This was the first time I had travelled on that ticket since the November 2014 incident.

When I arrived the ticket was not accepted by the barriers. The gateline man then accused me of not having a valid ticket and refused to allow me to leave the station - I had a tight (unofficial) connection to make at Southend Victoria or else have to wait for the next train, hence my unwillingness to go to another entrance. He then shouted at me and let another passenger accuse me of having an invalid ticket and most of the rest is shown on the video.

I hope that you can now understand that, in regards to the November 2014 issue, I settled out of court with a full acknowledgement of the validity of the ticket and an apology for the way I was treated.
 

cjmillsnun

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As someone else who has mental health issues I advise you to let it go. As a final act you can write to the managing director of the TOC concerned copying in the DfT explaining that the ticket was in fact valid and that you have been through this before and proven this to be the case.
The RPI can use powers of arrest and detention on reasonable suspicion of an offence. They can be wrong (they are human), but that does not constitute wrongful arrest which would be detaining someone without any suspicion or proof of an offence.
If anything this is a customer service issue.

For your own health, let it go.
 

319321

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This thread was asking a specific question. It was not to discuss my issue, though obviously the reason for opening it is related to that. Other forum members seem determined to discuss the issue and make untrue representations about how my ticket was invalidband how I lost my last court case to which I responded.

Can we get back to discussing whether or not the human rights act applies to train operating companies or not and have a reasoned discussion about it?
 

Tetchytyke

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Can we get back to discussing whether or not the human rights act applies to train operating companies or not and have a reasoned discussion about it?

Not really, because what you want as an outcome is inherently bound up in the discussion.

If your ticket is valid and c2c agree it is valid then detention may be a breach of Article 5. However this will depend on what form the "detention" took, who detained you, and under which circumstances it took place, given that RoRA allows railway staff to detain in certain circumstances. There is an argument- although not one I particularly agree with- that the TOC is carrying out a public function under the HRA when upholding RoRA or the Byelaws. If they are not a public body or carrying out a public function there can be no breach. However they are almost certainly not a public body when conducting their day-to-day business of providing railway transportation.

My view is that a TOC is not a public body for the purposes of the HRA, any more than a security guard operating in a supermarket would be. You may have a claim for the tort of false imprisonment, but you wouldn't have a claim for a breach of the HRA.

If the ticket was not valid, or c2c argue it was not valid, then the detention will probably be lawful. Any discussion of this will also depend on the terms of the settlement you reached with c2c.

The Byelaws allow railway staff to exercise their powers if they have a "reasonable belief". This belief can, of course, be incorrect, just as long as it is reasonable. I see nothing to suggest it was unreasonable for the ticket barrier staff to believe the ticket to be invalid at Southend Central, given that c2c say it is an "error" that NRES said it was.

Unless you are wishing to sue for an article 5 breach- and good luck to you if you are, you'll need it- I see no point in taking this discussion further. And even if you are, you should be seeking legal advice, as failure in court can be very very costly.
 
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theblackwatch

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I think the outcome of this discussion is that most people do not think it applies - probably not the answer the OP wanted to hear. Given that this is probably more a legal subject, I would suggest the OP takes it up with the legal profession if they think they have a case with regard to non-compliance and wish to take the matter forward.
 
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