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Exploring the Meaning of “Public Authority” under the EISRs and Defining the Way Forward
Daradjeet JagpalSolicitor and Public Sector Practice Group Leader
21 October 2010
Overview
/ Examine the tests that assist in determining the meaning of “public authority” under AEI legislation
/ Define a way forward for Scotland
The EISRs
Regulation 2(1)“Scottish public authority” means–
(a) any body which, any other person who, or the holder of any office which is–(i) listed in schedule 1 to the Act (but subject to any qualification in that schedule), or(ii) designated by order under section 5(1) of the Act;
(b) a publicly-owned company as defined by section 6 of the Act;
(c) any other Scottish public authority with mixed functions or no reserved functions (within the meaning of the Scotland Act 1998); and
(d) any other person who is neither a public body nor the holder of a public office and who is under the control of a person or body falling within paragraphs (a), (b) or (c) of this definition and–
(i) has public responsibilities relating to the environment;(ii) exercises functions of a public nature relating to the environment; or(iii) provides public services relating to the environment.
Guidance - Control
/ EU Directive implies a wide interpretation of paragraph (d)
/ Control – ability to exercise significant or decisive influence:– regulatory framework– financial / administrative– contractual / MoUs– governance– accountability– environmental function
Guidance - Public responsibilities, services, functions/ Public responsibilities
– should be interpreted widely– responsibility to manage / safeguard
environment
/ Public services– anything provided by the government to its
citizens, whether directly or via third parties– need not necessarily be for the common good
Guidance - Public responsibilities, services, functions/ Public functions
– function being carried out must be a statutory responsibility of a Scottish public authority
– third party has stepped into Scottish public authority’s shoes
– local authority trusts
/ Dynamic, case-by-case basis
/ Public responsibilities, services and functions must relate to the environment
Experience gained
/ Guidance sought from EU Commission as to meaning of “public administrative function,” “under the control of” and application to private sector
/ SIC has not determined any bodies to be under the “control” of a Scottish public authority
UK EIRs
Regulation 2(2)(2) Subject to paragraph (3), “public authority” means—(a) government departments;.(b) any other public authority as defined in section 3(1) of the Act, disregarding
for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding—.
(i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or.
(ii) any person designated by Order under section 5 of the Act;.(c) any other body or other person, that carries out functions of public
administration; or.(d) any other body or other person, that is under the control of a person falling
within sub-paragraphs (a), (b) or (c) and—.(i) has public responsibilities relating to the environment;.(ii) exercises functions of a public nature relating to the environment; or.(iii) provides public services relating to the environment.(3) Except as provided by regulation 12(10) a Scottish public authority is not a
“public authority” for the purpose of these Regulations.
Guidance
/ Private companies and non-governmental organisations may fall under (c) or (d)
/ (c) is the narrower ground – bodies likely to be covered by FOIA already – BUT the bodies need not carry out functions related to the environment
/ Guidance is otherwise identical to Scotland so far as (d) is concerned
Experience gained
/ ICO decisions/ Information tribunal decisions/ Require EU Commission guidance on definition
of “control” and “public administration function”
ICO Decisions
/ Wesley Housing Association and Belfast Improved Housing Association:– housing associations can be public authorities for
EIR purposes– test (c) satisfied – build and allocate affordable
housing– test (d) satisfied – subject to extensive regulation
from the Dept of Social Development, and have responsibilities relating to the environment, as construction can impact energy use and therefore the environment
– ICO adopts a broad definition of “public authority”
Information Tribunal Decisions
/ The Port of London Authority:– test (c):
• are the functions typically governmental?• if the body did not exercise the function, would the
government do so?• does the body have a statutory origin?• is the body accountable to government?• is ministerial approval required for e.g. borrowing?• is the body acting in a manner similar to a local
authority?• does the body have regulatory powers?
Aarhus Convention and EU Directive
Aarhus Convention, Article 2(2)
Public authority” means:
(a) Government at national, regional and other level;
(b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment;
(c) Any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person falling within subparagraphs (a) or (b) above...
Aarhus Convention, Guidance
/ Does little more than state the obvious – supranational instrument
/ Recommends creation of lists at national level
EU Directive 2003/4
Article 2(2):
"Public authority" shall mean:
(a) government or other public administration, including public advisory bodies, at national, regional or local level;
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).
EU Directive 2003/4
/ No guidance on the definition of public authority/ Case C-204/09 – Flachglas Torgau GmbH v
Federal Republic of Germany (lodged on 8 June 2009)
Other Jurisdictions, Emanation of the State and Human Rights
Other jurisdictions - France
/ Public authority means a natural or legal person having public responsibilities or functions or providing public services in relation to the environment under the control of:– government, at national, regional and other
level; or– natural or legal persons having public
responsibilities or functions under national law, including specific duties, activities or services in relation to the environment
Emanation of the State Doctrine
/ Case C-188/89 - Foster v. British Gas plc:“a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond that which result from the normal rules applicable in relations between individuals.”
/ Examples: police, health authorities, prison services/ Could this be an appropriate test for application in the
context of AEI legislation?– applied inconsistently by the courts– arguably of less relevance post privatisation
Human Rights Act 1998
/ Section 6(3): “In this section “public authority” includes...any person certain of whose functions are functions of a public nature...”
/ Key factors from UK case law so far (weighting applied on case-by-case basis):– obligation to act in the public interest– accountability / monitoring / control– public funding of function– exercise of statutory powers and who can be enforced against– substitute for public body– “enmeshed in the activities of a public body” / proximity
/ Courts have adopted a strict approach
Defining the Way Forward
Contact
DaradjeetSolicitor and Public Sector Practice Group Leader
21 October 2010
t/ 0141 227 9403
