|Hybrid public authority – amenability to judicial review – s6 Human Rights Act 1998
This was an appeal from a High Court judgment that a decision to reject an application by Mr Beer (B), a trout farmer, to be allowed to participate in the Farmers’ Markets Programme organised by the Hampshire Farmers Markets Limited (HFML) was susceptible to judicial review. The appeal also raised the question of whether HFML was a hybrid public authority within the meaning of s6 Human Rights Act 1998.
In 1999 Hampshire County Council began to organise farmers’ markets using the name Hampshire Farmers’ Markets, in which Mr Beer was involved from the outset. Having established Hampshire Farmers’ Markets, the Council handed over the running of the markets to the stall-holders and HFML was incorporated on 29 December 2000. HFML’s registered office was at the Council’s offices and the company was set up with the assistance of the Council. In 2001, the Council issued applications to participate in the 2002 programme of farmers’ markets but B’s application for a licence was turned down.
The Court of Appeal held that the combined effect of the circumstances that HFML owed its existence to the Council; was set up by the Council using its statutory powers; that HFML stepped into the shoes of the Council; that the Council assisted HFML in a number of ways; and that HFML were operating a market to which the public had access on public land, was sufficient to justify the conclusion that the HFML was for these purposes acting as a public authority within the meaning of s6 Human Rights Act 1998 and that that its decision to exclude B was amenable to judicial review. The Court also noted that the question of whether a body was amenable to judicial review required careful consideration of the nature of the power and function that was exercised to see whether the decision had a sufficient public element, flavour or character to bring it within public law: see the decisions in Heather v Leonard Cheshire and Poplar Housing and Regeneration Community Association Ltd v Donoghue.