By Herbert Bradley,2014-11-26 12:26
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    Paul Rishworth, The University of Auckland

    Janet McLean, University of Dundee


    Both section 3(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) and

    section 6 of the Human Rights Act 1998 (UK) (‗HRA‘) impose the obligation of 1rights-observing on private persons or bodies who perform a public function.

    In principle, the idea behind these sections is simple. Bills of rights are intended to constrain the state. When the state authorises or permits a private person to perform functions of a type that would be constrained if the state performed them, it seems right to visit the state‘s obligations on that private body. To capture that intended

    sphere of direct application to private actors, the NZBORA and HRA each employ the concept of public function. Acts done in the performance of that function must

    comply with rights obligations, and will be unlawful if they do not.

    But it has proved difficult to define public function. In a sense, the label public is a

    conclusion based upon an inquiry into how a particular function ought to be regarded. While various factors are generally agreed to be in play whether and how public

    money is involved, whether statutory powers are exercised, whether the body takes the place of government, whether it performs a public service, and so on their

    application to a specific dispute can be contentious. The recent decision of the House 2of Lords in YL v Birmingham City Council is a case in point. There, three Law Lords

    held that a private rest home caring for a publicly-funded patient, placed there by the Birmingham City Council, was not engaged in a public function. Two Law Lords held that it was.

    As one would expect when there is a division of opinion at that level, there is much to be said for each perspective on what constitutes a public function. Lord Nicholls 3understates the matter when he says: ‗The term ‗public‘ is of uncertain import. The

1 Section 3 of the New Zealand Bill of Rights Act 1990 reads:

    This Bill of Rights applies only to acts done

    (a) By the legislative, executive, or judicial branches of the Government of New Zealand; or

    (b) By any person or body in the performance of any public function, power, or duty conferred or

    imposed on that person or body by or pursuant to law.

    Section 6(1) of the Human Rights Act 1998 (UK) makes it unlawful for a ―public authority‖ to act in

    away that is incompatible with a Convention right. By s 6(3)(b) a public authority includes a person who has functions of a ―public nature‖, but (by s 6(5)) not in respect of acts that are ―private‖.

2 [2008] 1 AC 95.

    3 Lord Nicholls in Aston Cantlow v Wallbank [2004] 1 AC 546, at [6].

    related field of inquiry in the United States, state action, has been called a conceptual 4disaster area. In New Zealand the legislative history of the ‗public function‘ test shows that drafters drew on that US experience of ‗state action‘ and attempted to 5capture it in the words ―public function‖. They then added, presciently: ―[section 3]

    can only be a first step in the drawing of the line between public action which would 6be caught by the Bill of Rights, and private action, which would not be‖. It is as if the

    idea of ―public function‖ was really a code to denote the whole set of issues that would need to be faced under a Bill of Rights, and certainly not as a self-applying formula.

    So no one expects the public function test to be easy. The point of this paper, however, 7 is not to evaluate the merits of the dissent and majority in YL, for that has been done.

    Rather than launching a frontal assault on the question of what defines a public function and whether YL is correct, we aim to ask some questions about the whole enterprise. These are:

    1. Whether the choice of perspective (and affixing the label public function)

    might be influenced by the substance of the rights dispute underlying the case.

    We think it is.

    2. Whether it is necessary or helpful, in deciding whether human rights standards

    should regulate a particular impugned action, to engage in the blunt

    assignment of the ‗public function‘ label. We think it is not.

    This leads us to the conclusion that the intervention of human rights law in the form of HRA application was not required in YL. Rather, human rights were being

    appropriately delivered by the mechanisms of ordinary contract law and the statutory functions and duties imposed on the participating parties. That is to say, we agree with the majority in the House of Lords, but for the reason that the underlying merits of the case did not require assigning the label ‗public function‘.

    In order to address these questions we begin with general points about how bills of rights operate as a legal standard for the state‘s actions and its law – and, through

    those actions and that law, for the private sector. Then we consider the facts and reasoning of YL and selected other cases from the UK and NZ on public function. We then return to the questions just posed, drawing upon the preliminary points made and the case studies.

4 C Black, ‗The Supreme Court 1966 Term – Foreword: ―State Action‖ Equal Protection, and

    California‘s Proposition 14‘ 81 Harv L Rev 69 (1967) at 95.

    5 See the White Paper that set out the draft New Zealand Bill of Rights and provided commentary, A

    Bill of Rights for New Zealand, (1985) AJHR A6.

    6 Ibid, 10.23

    7 See further S Palmer, ‗Public, Private and the Human Rights Act 1998: an Ideological Divide‘ (2007) 66 CLJ 559; M Elliott, ‗―Public‖ and ―Private‖: Defining the Scope of the Human Rights Act 1998‘ (2007) 66 CLJ 485; A Williams ‗YL v Birmingham City Council: Contracting Out and ―Functions of a

    Public Nature‖‘ (2008) 4 EHRLR 524; J Landau, ‗Functional Public Authorities After YL‘ [2007] PL




    1. The idea of a bill of rights: a baseline for acceptable state conduct and law The idea behind most modern bills of rights is to establish minimum standards that the state must observe in its actions and in the laws it makes. The standard is expressed in vague and benign generalities (the human rights themselves) but given specification in particular contexts. These twin concepts broadly worded rights

    allied (where appropriate to the nature of the right) with limits that, if prescribed in

    some (other) law, must be reasonable and proportionate set the baseline for state law

    and conduct.

    Importantly, both the HRA and the NZBORA affirm rights sourced from an 8 and International international treaty (the European Convention on Human Rights9Covenant on Civil and Political Rights respectively). Those international obligations

    are to be discharged, for the benefit of a state‘s citizens and residents, through

    appropriate laws and actions. This includes a legal system and administrative structure that respects, affirms and promotes rights and provides remedies for breach. In that sense rights generate positive duties and are not observed simply by refraining from interference. Rights-respecting obligations extend beyond the state, to private actors but may (as discussed below) take a different form.

    2. Rights as reasons for action

    The ubiquity of the proposition may mask it, but in fact a sizable proportion of our law the law operating between citizens has as its aim the protection of life, bodily

    integrity, autonomy, liberty and property. Much of our statutory law and various tort actions gives expression to what a bill of rights, operating between citizens, would require. So too, does the fact that in certain areas the common law goes so far and no further: the general absence of restraints on religion, expression and association

    reflects the value ascribed to those fundamental liberties. Rights supply reasons for positive law, as well as defining appropriate limits on that law.

    While the international and domestic human rights instruments have been drafted and enacted only recently, they express ideas that have animated law for centuries. Indeed, that is why the rights that appear in them were selected: they reflected deep values thought to be already embedded in the major legal systems of the world. That said, some rights, such as rights against discrimination, are the product of quite modern sensibilities. And whether new or not, all rights can be conceived as having fresh applications in modern contexts. And that is our next point.

    3. Bills of rights as the occasion for re-evaluation

    The enactment of domestic bills and charters articulating broad human rights can prompt re-evaluation of the balances struck in hitherto settled law, especially common law. While much of our settled law makes sense in rights terms, it is not always perfect. Arguments for refinement occur mainly around the margins of a law

    8 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1959; TS 71 (1953); Cmd 8969.

    9 999 UNTS 171; UKTS 6 (1977); Cmnd 6702.


otherwise well-settled (for example, how to protect privacy in a digital age when 10celebrity pictures have a new value and are so easily taken; refining defamation law 11to allow robust political commentary).

    YL is explicable on this basis, too. Given a burgeoning elderly population needing care in an era of rising medical costs, it is not surprising that the spotlight is falling on a new frontier how care homes for the elderly are permitted to deal with their residents and whether appropriate regard is given to their interests by commercial operators. All this is bundled under the idea of respect for home to as yet uncertain

    effect, given that cases like YL have been about threshold questions of HRA-

    applicability and not yet about the substance of the rights involved. For most persons, at least for most of their lives, their right to a home is protected by real property law, by landlord and tenant law, and by the details of applicable statutes. But these traditional protections fail to capture the full ambit of what might need to be involved when circumstances force people into the care of others, and often at public expense. The idea of a right to a home in another person’s home is similarly at the margins of

    a settled core. The general principle of respect for home life may need a new specification, or iteration, in this particular context. Article 8 of ECHR is making this possible or at least supplies the language and form in which the examination is taking place. (The underlying and animating sentiment that older people need both 12care and protection obviously has a source other than the ECHR.)

    So, to recap, rights instruments can be the occasion for re-evaluation. This is because the various iterations of fundamental rights principles the myriad statutes and

    common law rules that protect life, liberty and due process can always be judged

    afresh against the higher level general principles of which they are iterations. The

    status quo may not attain the minimum standards that the HRA or the NZBORA requires. If it does not, the question is what can be done. In the case of privacy and defamation, adjustments to common law doctrine have been made.

    In principle, common law must meet BORA and HRA standards. Some may attribute this to the judicial branches being positively ‗bound‘ to make that happen, or to the simpler proposition that common law ought to be (or at least generally is) made to reflect the democratic articulation of fundamental values as expressed in quasi-constitutional rights instruments. This may be another sense in which Carol Harlow‘s

    observation is borne out that the modern tendency is for the private law to be 13colonised by public law. This can have the effect of indirect application of bill of 14rights standards to citizens in their conduct towards each other. But, as the next

10 Hosking v Runting [2003] 3 NZLR 385 (NZCA).

    11 Lange v Atkinson [1998] 3 NZLR 424 (NZCA).

    12 See for example, A Bill of Rights for the UK? Twenty-ninth Report of the Session 2007-2008 Joint

    Committee on Human Rights HL Paper 165-1, HC 150-1 and its references to vulnerable groups in society such as the old, the disabled, the vulnerable and children (pp5, paras 138-145). 13 C Harlow, ―The ‗Hidden Paw‘ of the State‘ in D Dyzenhaus, M Hunt, G Huscroft (eds), A Simple

    Common Lawyer (Oxford: Hart Publishing Ltd, 2009) 77-8.

    14 One form of indirect horizontality would hold that the common law must reflect the ‗values‘ of a bill

    of rights; another that common law is more directly subordinate to a bill of rights. Even in the latter instance, there are limits to what judges can accomplish by way of adjustment to common law. See for


    section discusses, the substance of rights applying between citizens may well be different.

    4. Rights of persons inter se

    A bill of rights that applies to the common law does not mean that the common law must be developed so citizens owe to each other the same set of rights as the state 15 There are several reasons for this. Some rights in a bill of rights are not owes them.

    apt for application between citizens, and, even when they are, citizens‘ rights against

    each other may take a different hue from rights of citizens against the state. Anti-discrimination law, for example, stops short of dictating the intimate arrangements and choices of the citizenry who they invite to parties, and so on whereas it does 16regulate participation in the market. Similarly, religious denominations remain free 17to take religious belief into account in their hiring, and so on. Rights between

    citizens must reckon with individual liberty and autonomy along with the rights of others.

    18In the famous case of Shelley v Kraemer, the US Supreme Court reckoned with this

    autonomy by refusing to enforce a racist covenant imposed through the mechanism of contract law. Stephen Gardbaum explains this persuasively, in our view, as an 19instance of as applied invalidity a method routinely applied in US constitutional

    adjudication whereunder specific applications of statutes are ruled unconstitutional 20but the statute remains valid for other, permitted, applications. Though not a concept

    employed in common law adjudication (as Gardbaum points out) it is indeed apt as an explanation for the Court‘s refusal to enforce the racial covenant that had been entered into by virtue of the contractual autonomy that the common law otherwise rightly protects. That is an instance of the downward effect of the state‘s commitment in a bill of rights.

    What Shelley exemplifies is that when law supplies a liberty that might be used in a rights-infringing way, there are circumstances in which the public ramifications of that liberty are such that the liberty needs to be controlled. In Burton v Wilmington 21Parking Authority the State Court of Delaware had refused a remedy to a black man

    most valuable discussions, Stephen Gardbaum, ‗Where the (State) Action Is‘ (2006) 4 Int Jnl Con Law 760 and ‗The Horizontal Effect of Constitutional Rights‘ (2003) 102 Mich LR 387. For an explanation of the NZ position, see P Rishworth, ‗Taking Human Rights into the Private Sphere‘ in D Oliver and J Fedtke (eds), Human Rights and the Private Sphere, (London: Routledge-Cavendish, 2007), 312.

    15 See Rishworth, P, Huscroft, G, Optican, S, Mahoney R, The New Zealand Bill of Rights (Melbourne:

    OUP, 2003), 102-09.

    16 Section 44(4) Human Rights Act 1993 (NZ).

    17 Sections 28 and 39, Human Rights Act 1993 (NZ).

    18 334 US 123 (1947).

    19 In ‗Where the (State) Action Is‘, above note 12.

    20 ‗As applied‘ invalidity contrasts with facial invalidity (when there are no possible constitutional

    applications or where the enactment fails on the further grounds of overbreadth or vagueness). 21 365 US 715 (1961).


    denied entry to a restaurant on the grounds that the restaurant was acting in a private capacity and owed no constitutional duty to refrain from discriminating. But the United States Supreme Court found state action in the fact that the restaurant was in

    a city-owned parking building and that the city benefited from the restaurant‘s

    financial success such that it became complicit in the restaurant‘s act of

    discrimination. And, noted Justice Clark for the Court, in its lease with [the

    restaurant] the Authority could have affirmatively required [the restaurant] to discharge the responsibilities under the Fourteenth Amendment imposed upon the 22 This was a case, then, in private enterprise as a consequence of state participation.

    which a core governmental agency ought to have distributed its own rights-respecting obligation down to the provider by way of a contractual requirement, and when it did not the Court supplied the deficiency.

    We do not advocate the invocation of US state action doctrine in New Zealand or the United Kingdom but merely note the imperatives operating in the two cases mentioned, each reflecting a balancing of the rights at play.

    So, to sum up to this point, bills of rights are able to serve as reasons to judge law for what it does or does not do. They are a basis for re-evaluation, if solutions cannot be found through statutory interpretation and common law development. Over time the intended outcome is a body of rights-observing law that guides practice. The detail of our law either does or should be made to track at least the minimum standards set by bills of rights. When this happens, rights are protected and recognised, and there are remedies for breach. It may not often be necessary to contemplate direct recourse to the bill of rights, for one might expect that its demands on the legal system are accommodated within ordinary law and practice. The analysis of these kinds of examples does not engage the question of whether and how far rights instruments extend into the private sphere, but rather starts with the presumption that the law is already rights-protecting and assesses whether any rival rights and freedoms enjoyed by individuals inter se have been properly moderated by the law.

    We are mindful that on their face, by s 3 and s 6, the NZ and UK enactments do apply directly to private bodies that perform a public function. But we hope enough has been said to lay the groundwork for an argument that the general law ought to ensure that the relevant bodies in fact respect rights. Where they do not, the general law may be defective for all, and not just those who attempt (say for funding reasons as in YL)

    to make a claim directly upon the HRA.


    1. The YL case

    Birmingham City Council (BCC) had a duty under the National Assistance Act 1948 to arrange residential care for YL. To discharge that duty it contracted with a Southern Cross rest home. The home, a private for-profit care home, entered into a

    tri-partite contract with the Council and YL to provide YL‘s care. Much of the cost

    was funded by BCC, some by YL. Southern Cross also contracted with self-

22 Ibid, p 725.


    funders‗ – those residents who were paying for their own care and who were not resident as a result of the Council‘s (or anyone else‘s) statutory duty.

    The care home was seeking to terminate the contract for YL‘s care and had given

    notice for her removal. The contract between the local authority, the care home, and the resident required that the care home comply with the HRA and that termination should only take place for a good reason. The House of Lords split 3:2, the majority holding that a private company carrying on a socially useful service for profit in a commercial market, in the absence of special statutory powers and direct public funding, is not exercising a public function and the act of seeking to terminate its 23 agreement is a private one.

    In YL all of the judges struggle with a methodology which seems to force a determination of the status of the function a priori without reference directly to the

    rights at stake nor to the mechanism chosen by the state to protect them. This leads to ‗all or nothing‘ determinations of whether a function is public or private – the kind of

    determination that, in our view, is uncongenial to the common law way of thinking. The majority, for example, is concerned that if a care home should be found to be performing a public function in this case then its managers and nurses would be 24considered a public authority for all other purposes. Their Lordships do not outline

    what these are, but consider, for example, whether the care home should owe the same degree of religious freedom to the patient as would the state. Conversely, Baroness Hale, in the dissent, is concerned that if a care home is found not to be exercising a public function here then it will not be considered to be doing so when it is detaining particularly vulnerable patients receiving treatment for psychiatric orders, 25or (her example) feeding and toileting patients at the same time. A search for ‗public

    function‘ in the abstract is not something that common lawyers are used to or good at.

    As we have suggested, the common law has never taken such an all or nothing approach to the question of rights. It has always protected certain of the rights that are now within the scope of the HRA and NZBORA. Indeed it is a constitutional fundamental of our system that such protections apply to all persons whether public officials or private persons. The common law has always allowed legal persons to carry obligations and enjoy rights at the same time. Albeit that the proceedings forced them to do so, by taking a public function approach the House of Lords was unable to reach the contractual or other possible common law aspects of the case. How would we analyse the situation in YL if we were to start with the right instead of

    the question of function? Our initial focus would begin with Article 8 of the ECHR which articulates the general principle that an individual is entitled to respect for his or her home and private life. The question then becomes whether the law, and actions permitted by the law, measure up to the standards required by the ECHR and HRA? One possible answer in the YL case is that, at least as far as BCC‘s actions were

    concerned, it assuredly did. The Council, which undoubtedly owed the Convention

23 Above note 2 , [24]-[26] per Lord Scott.

    24 Ibid, at [30] per Lord Scott.

    25 Ibid, at [58]-[60].


    obligation, had discharged that obligation. It placed YL in a rest home on contractual terms that positively protected her Convention rights.

    The Strasbourg jurisprudence, and previous UK authority, is to the effect that Article 8 of itself does not give a right to be provided with a home and does not guarantee 26 the right to have one‘s housing problem resolved by the authorities‘.

    Acknowledging that Article 8 is not an absolute right, the House of Lords made clear in Kay v Lambeth London Borough Council that Article 8 gives rise to obligations of 27procedure as well as substance. It said that Article 8(2) requires the person seeking

    to enforce a claim for possession to justify its interference with the occupier‘s right to a home. The existence of a right to claim possession would ordinarily of itself supply that justification but the majority suggested that in exceptional cases the occupier could argue that the action was not justified. (Dissenting on this point, Lords Bingham, Nicholls and Walker would have allowed even more extensive opportunities to take individual circumstances into account in challenging the justification.) Whichever approach one chooses, YL surely attracts the requirement that the property owner must justify interference with her home life. Indeed, the level of justification required in the YL case is likely to be more onerous than in Kay given the

    vulnerability of the elderly infirm party. The Council has in this case instantiated this in the contract by requiring termination of the contract only for good reason. The legal question remains to be asked of the care home whether their stated reason for

    termination, the allegedly disruptive conduct of YL‘s family members, was a sufficiently good reason.

    Seen in this light, it is not clear to us that rights have actually been breached in YL‘s

    case. It is certainly not a case in which the local authority has flagrantly attempted to avoid its obligations by divesting services elsewhere. It had given consideration to what could constitute respect for a home life and made some attempt to translate

    that principle into practice. Perhaps it could have articulated more precisely what would be a good reason for termination though that may have been asking too much. Given that the state obligation under the Convention has been translated into law in this way, how could it be otherwise than that the Convention right would be engaged 28in the manner by which the contracted out services were performed? That enquiry

    enforces the legal protections that have been put in place to uphold Article 8. What if the Council had not negotiated a rights-protecting contract? Then (though her costs were being met in part from public funds) Mrs YL would have been in the same position as a private, fee paying, resident. No contractual provision (unless of course she had negotiated it herself) would prevent her eviction without cause. If this were the case, would the UK have discharged its Convention obligation to ensure its citizens have respect for their home? It seems to us that this would depend on the merits of the underlying claims as between (on one hand) a person in need of care, who occupies a room or bed that counts as her ‗home‘, and (on the other) a commercial provider of care services.

26 Kay v Lambeth London Borough Council [2006] 2 AC 465 at [90] per Lord Hope.

    27 Ibid per Lord Hope at [68].

    28 Cf the arguments of counsel for the claimant, above note 2 at [83].


    The current default setting in the underlying law would resolve that claim by looking to the contract between the resident and the home. Let us assume this permits termination without cause. Might we not argue, however, that the fundamental nature of this particular right the right to respect for that which is one‘s home calls for

    amelioration of the rigour of such a contract; that, in other words, a requirement of good cause to evict or terminate is implied? And this would be because of a judgment about what the right actually means in this context in the context of a commercial

    rest home (and not, say, a relative looking after the patient in his or her own home, even with public funds). Bearing in mind that in the analogous case of Kay, Article 8

    was said to apply to private as well as public landlords, it is possible to regard the presence of the Convention as providing the opportunity for (or perhaps even forcing) 29 It is the re-evaluation of the common law baselines of contract and trespass law.possible to argue that there should be an implied term in care contracts that they be terminated only for good cause and on reasonable notice.

    Might it, then, be the underlying rights calculation of the cogency of Mrs YL‘s

    rights claim that drives the argument by the dissenters that the home was

    performing a public function? We think it may be. But is the claim by the self-funding resident any less cogent? A solution that addressed the issue for the benefit of both categories may well be preferable. That is to say, should English law recognise, for everyone, a right not to be evicted from (what counts as) one‘s home, without good reason? Might it be ‗an unconstitutional application‘ of trespass law to evict in such a circumstance?

    Given that most other relevant Convention rights are reasonably integrated already into common law, it is not surprising that Article 8 is testing the margins. The common law has traditionally protected the right to a home life through its rules of property and trespass. But this is problematic for those especially vulnerable people who do not enjoy property rights in their own homes and who are therefore at the mercy of landlords and institutional caregivers who enjoy the protection of property rights. This was indeed the case in YL where the resident with dementia depended for

    her home and care on a contract. In our view the YL case is primarily about how the

    general principle, that one‘s home should be respected, should be given legal effect in a situation in which elderly and unwell persons find themselves necessarily living in the property of a commercial caregiver. We do not see that question as affected by how the rest home or its resident is funded. Respect for one‘s home life is owed to everyone. The law should not allow a contract about something as important as residential care to be arbitrarily terminated.

    Section 145 of the recently enacted Health and Social Care Act 2008 adopts the view of the minority in YL and declares that the provision of certain social care should be regarded as a public function under s 6 HRA. It is an understandable attempt to remove the threshold impediment to considering the substance of a rights claim under the HRA procedures. In many ways, however, it continues to lure us along the false trail on which s 6 of the HRA has set us. The 2008 Act does not of itself give substance to Article 8 or the other rights set out in the ECHR. Unlike the Mental Capacity Act 2005, it only applies to individuals for whom arrangements have been made under certain statutory provisions (such as residents like Mrs YL funded under

29 Ibid at [64].


    the National Assistance Act 1948). It is general care standards set out in legislation and provided by tort, and criminal law that will best protect rights here, not the label public function.

    What does the issue of public function add to any of this analysis? It affects the assessment of the actual rights framework in YL case itself scarcely at all. The harder

    case is where the resident has not been publicly funded and Convention rights have not been instantiated through the contract. Then more difficult issues arise about whether the common law baselines ought to be re-evaluated and whether that is possible within the methods available to common lawyers to develop the law in a rights compliant way. Other questions then also potentially arise about what

    remedies ought to be available, and how to align public and private law procedures. These issues are important and difficult. But at its core, the dispute in YL is not about

    who performs the function, or what the function is, but about the right to a home itself. 2. Poplar Housing

    The rights analysis is not necessarily affected by a negative finding on the question of

    whether s 6(3) is fulfilled but, equally, neither is it affected by a positive finding that

    the public function test has been fulfilled. Poplar Housing and Regeneration 30 was an earlier case where the Court of Community Association Ltd v Donoghue

    Appeal held that a public housing association fulfilled the s 6 public function test. At the same time it found Article 8 had not been breached. Again, analysing the case from a human rights starting point, it is not apparent that the determination of whether a body is exercising a public function adds anything to the assessment of the content of the right in this kind of case involving Article 8. This case involved a private body delivering a government programme that allocates social housing to people fulfilling qualifying requirements. The claimant raised an Article 8 challenge to her eviction by the housing association from an assured short hold tenancy which did not provide

    for security of tenure. The short term nature of her tenancy and hence her eviction were the consequence of a determination that she was intentionally homeless

    according to the governing legislative scheme (a matter about which she had been entitled to and given a hearing). The housing association had simply implemented the government‘s allocation policy. The Court of Appeal did not find that the housing

    association had breached Article 8 in those circumstances. One may not have liked the legislative scheme itself but that was not the focus of the challenge. In any event, given the difficulty of allocating scarce homes to competing applicants, an Article 8 attack on the legislative scheme would have confronted its own considerable challenges.

    The Court of Appeal‘s finding that the housing association was fulfilling a public function appeared to depend on how closely its activities were linked to government. 31Lord Woolf said:

    Although there is no doubt that housing associations have their own constitutions and

    mechanisms for governance, in the practical day-to-day management of both long-

30 [2002] QB 48 (CA).

    31 Ibid at [49].


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