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