Human Rights Act 1998 and Administrative Law - Essay Example

ADMINISTRATIVE LAW: The ment that “The scope of the Human Rights Act 1998 is limited because the act fails to define with sufficient precision what constitutes a public authority under Section 6 (3).” Is true in some respect. According to Sec-6 of the Human Rights Act,1998 : 6.— Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section “public authority” includes— (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) In subsection (3) “Parliament” does not include the House of Lords in its judicial capacity. (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6) “An act” includes a failure to act but does not include a failure to— (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order. The meaning of the word “authority” given in webster’s Third New International Dictionary, which can be applicable is “a public administrative agency or corporation having quasi-governmental powers and authorized to administer a revenue – producing public enterprise”. This dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by statute on which powers are conferred to carry out governmental or quasi governmental functions. But Sec-6(3) is a bit ambiguous on this point. According to the text of the judgment in the House of Lords case ‘YL v Birmingham City Council [2007] UKHL 27’ “ Section 6(3)(b) extends the definition of public authority to cover bodies which are not public authorities but certain of whose functions are of a public nature, and it is therefore likely to include bodies which are not amenable to judicial review. Section 6(1) of the Act said that “it [was] unlawful for a public authority to act in a way which [was] incompatible with …” any of these rights. The section did not contain any comprehensive definition of “public authority” but subsection (3)(b) said that a “public authority” included “any person certain of whose functions are functions of a public nature”. However subsection (5) said that: “In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.” The effect of all this is that an act (or an omission) of a private person or company that is incompatible with a Convention right is not unlawful under the 1998 Act (it may, of course, be unlawful under ordinary domestic law) unless the person or company has at least some “functions of a public nature”; but even if that condition is satisfied the private person or company will not have any liability under the 1998 Act if the nature of the act complained of was private. The argument is based on the alleged similarity of the nature of the function carried on by a local authority in running its own care home and that of a private person running a privately owned care home proves too much. If every contracting out by a local authority of a function that the local authority could, in exercise of a statutory power or the discharge of a statutory duty, have carried out itself, turns the contractor into a hybrid public authority for section 6(3)(b) purposes, where does this end? Is a contractor engaged by a local authority to provide lifeguard personnel at the municipal swimming pool a section 6(3)(b) public authority? If so, would a local authority employee engaged by the local authority as a lifeguard at the pool become a public authority? Could it be argued that his or her function was a function of a public nature? If Southern Cross is a section 6(3)(b) public authority, why does it not follow that each manager of each Southern Cross care home, and even each nurse or care worker at each care home would, by reason of his or her function at the care home, be a section 6(3)(b) public authority? Section 6(5) provides that ‘a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’. The broad shape of the section is clear. ‘Core’ public authorities, which are wholly ‘public’ in their nature, have to act compatibly with the Convention in everything they do. Other bodies, only certain of whose functions are ‘of a public nature’ have to act compatibly with the Convention, unless the nature of the particular act complained of is private. The law is easy to state but difficult to apply in individual cases such as this. Among the declarations sought in this case was a declaration that the company, in providing accommodation and care for the appellant, was exercising public functions for the purpose of section 6 of the 1998 Act. The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals themselves; and, to the extent that they are exercising public functions, companies responsible for areas of activity which were previously within the public sector, such as privatised utilities. The contrast is drawn in the Act between ‘public’ functions and ‘private’ acts. This cannot refer to whether or not the acts are performed in public or in private. There are many acts performed in public (such as singing in the street) which have nothing to do with public functions. And there are many acts performed in private which are nevertheless in the exercise of public functions (such as the care of prisoners or compulsory psychiatric patients). The contrast is between what is ‘public’ in the sense of being done for or by or on behalf of the people as a whole and what is ‘private’ in the sense of being done for ones own purposes. it is common ground that ‘functions of a public nature’ include the exercise of the regulatory or coercive powers of the state. Thus, were a public authority to have power to delegate the task of regulating care homes to a private body, that regulation would be a function of a public nature. Those factors tell heavily in favour of section 6(3)(b) applying to this case. While there cannot be a single litmus test of what is a function of a public nature, the underlying rationale must be that it is a task for which the public, in the shape of the state, have assumed responsibility, at public expense if need be, and in the public interest.” (http://login.westlaw.co.uk/app/document?&src=rl&suppsrguid=ia744dc3f0000011ea05a282638f31224&docguid=I85FDBE601FAB11DCAFBDFE6E7D25BD1C&hitguid=I854EE0C01FAB11DCAFBDFE6E7D25BD1C&spos=2&epos=2&td=19&crumb-action=append&context=7) The above stated discussion in the case of ‘YL v. Birmingham City Council’ shows that though the statute has tried to include within the ambit of public authority a court/tribunal and any person whose functions are of public nature but still the section is not very clear and elaborate on the difference between the public and private enterprise and also if certain functions are delegated by a public authority on a private authority then in that case will the private company can be considered as a public authority for that matter. This creates a bit of ambiguity and the scope of the Human Rights Act 1998 gets limited because of the fact that the act fails to define with sufficient precision what constitutes a public authority under Section 6 (3) exactly. CONTRACT LAW QUESTIONS 1) Mark plans to hold a car boot sale in his field and advertises it in the local newspaper as follows: ‘Mammoth 3 day car boot sale, starting 1 November. 50p entrance fee at the gate. First 10 people to turn up will receive free flights to Tenerife.’ The advertisement given by Mark in the local newspaper constitutes a General Offer. An offer, by way of advertisement, of a reward for the rendering of certain services, addressed to the public at large, prima facie creates a power of acceptance in every person to whom it is made or becomes known. But a contractual obligation to pay the reward only comes into existence when an individual person performs the stipulated services, and not before(New Zealand Shipping Co.Ltd. v. A.M. Satterthwaite & Co. Ltd.(1975)A.C.154) In some cases, such as the offer of a reward for information or the return of a lost possession, the offer is exhausted when once accepted. The offeror clearly does not intend to pay many times over for the same thing. So, where a reward is offered for information asked for reaches the offeror from several sources, it has been held that the person who gave the earliest information is entitled to the reward(Lancaster v. Walsh (1838)4M&W.16) According to the case ‘Carlill vs. Carbolic Smoke Ball Co.(1893);Q.B.256 , in this case the manufacturer of smoke balls advertised in newspaper that whosoever contracts influenza even after taking their smoke ball will get certain amount as reward or damages in return from the company according to the instructions set in the advertisement. Plaintiff bought the smoke ball used it as per instructions given in the advertisement but nevertheless contracted influenza. He brought a action against the defendant company and was rewarded damages by the court. It was ruled by the court that people would be bound by promises made to the world and public at large to fulfill what they promise, so far as some element of "reliance" or "detriment" to the promisee, or "benefit" to the promisor can be identified. So in the light of the above stated case law I will advice Mark to give a ticket to Tenerife to Leonard as he has fulfilled all the conditions given by Mark in his general offer. The fulfillment of all the conditions by Leonard is an valid acceptance on his part and that in turn binds Mark. Mary approaches Sid, a stallholder. Mary says: ‘Let me have that old vase for £100 on the usual trade terms’. Sid, who is rather puzzled by the reference to the ‘usual trade terms’ replies: ‘Interesting offer, would you be willing to pay a bit more?’ Mary says: ‘No, but here is my name and telephone number. Get back to me if you want to sell.’ Four months later Sid telephones Mary to say that he accepts her offer to buy his vase at £100. Mary argues that her offer has now gone stale and is no longer valid. My advise to Sid will be that Mary made an offer that you have duly accepted which makes it binding on Mary to honour her word. It can be said that the intention of the offeree to accept must be expressed without leaving room for doubt as to the fact of acceptance, or as to coincidence of the terms of the acceptance with those of the offer. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise, the person who makes the proposal is called the ‘promisor’ and the person accepting the proposal is called the ‘promisee’. When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called consideration for the promise; every promise and every set of promises, forming the consideration for each other, is an agreement; and afterwards it culminates in to contract. Consent should always be free consent without any fraud, coercion, undue influence or misrepresentation. These basic rules of offer, acceptance and invitation to treat etc are amply illustrated in the cases ‘Pharmaceutical Society of Great Britain v. Boots Cash Chemicals Ltd.(1952)2 Q.B.795’ and ‘Felthouse v. Bindley(1862)6L.T.157’ and also in ‘Fisher v. Bell (1961) 1Q.B. 394’ The acceptance must assent unequivocally and without qualification to the terms of the offer. The acceptance may also be qualified by reference to the preparation of a more formal contract or by reference to terms, which have still to be negotiated. In such a case a agreement is incomplete and there is no binding contract. In this case Sid made a clear and unequivocal acceptance of the offer that Mary made to him. The fact that he accepted the offer 4 months later will have no bearing on his acceptance as first of all Mary had made no mention of the time frame within which the offer has to be accepted by Sid and secondly before Sid accepted Mary’s offer she didn’t revoke it. In this scenario Sid can sue Mary for Specific Performance of the Contract. Dinesh cannot claim any travel expenses from Mark as the offer made by Mark made no mention of the closing date, it merely mentioned the opening date and the reward first ten customers will get. Mark was at liberty to finish the sale as per normal commercial sense. 2) This problem pertains to the role of consideration plays in Law of Contract. In Currie v. Misa(1875)L.R.10 Lush J. stated: A valuable consideration, in the sense of the law, may consist in some right, interest,profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. In this case Arnold owes Richard £900 in membership fees. Richard says he will release Arnold from the debt because Arnold repaired Richard’s car last year. Despite making a statement to that effect Richard can claim £900 from Arnold as past consideration is no consideration. Past consideration is a mere sentiment of gratitude or honour prompting a return for benefits received. In the case of past consideration, the promise is subsequent to the act and independent of it; they are not in substance part of the same transaction. Thus if A saves B from drowning, and B later promises A a reward, A’s action cannot be relied on as consideration for B’s promise for it is past in point of time. Past consideration is, in effect, no consideration at all; that is to say it confers no benefit on the promisor, and involves no detriment to the promisee in return for the promise. It is merely an act or forbearance in time past by which a person has benefited without incurring any legal liability. If afterwards, whether from good feeling or interested motives, the person who has benefited makes a promise to the person whose act or forbearance led to the benefit, and that promise is made upon no other consideration than the past benefit, it is gratuitous and cannot be enforced. ‘Roscorla v. Thomas’(1842)3Q.B.234 amply illustrates the principles of past consideration. Richard cannot claim £200 from Sylvester although according to the ‘Pinnel’s Case’(1602)5Co.Rep.117a the rule is that the payment of a smaller sum in satisfaction of a larger is not a good discharge of a debt but there are certain exceptions to this rule, that a creditor who accepts, in full satisfaction, part payment of a debt by a third party cannot later recover the balance from the debtor, is also based on the need to prevent fraud on a third party. In ‘Hirachand Punamchand v. Temple’(1911) 2K.B.330 A father wrote to the plaintiffs, his son’s creditors, offering to pay part of a debt due on a promissory note in satisfaction of the whole, and enclosing a draft for that amount. The plaintiffs cashed the draft, and then sued the son for the balance. The Court of Appeal held that the creditors must be deemed to have accepted the draft in full satisfaction, and that the son’s debt was extinguished. Richard can claim full £100 from July from Sue but he cannot claim ‘arrears’ of £40 per month for the period in which Sue paid a reduced fee of £60 per month. This case comes under Promissory Estoppel. Promissory Estoppel was invoked in ‘Central London Property Trust Ltd. v. High Trees House Ltd.’(1947)K.B.130 In this case Denning J. stated that ‘the application of this principle led logically to the conclusion that ‘a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration’. He also ruled that but a lot depends upon the intention of the parties. In Richard’s case Richard and Sue intended the reduction of rent to be a temporary expedient till the time Sue was student. After her passing out Richard can claim enhanced rent from her but cannot recover the arrears for the previous period. 3) The Law may imply into a contract terms which the parties have not themselves inserted. In some cases, in particular contracts for the sale and supply of goods and services, contracts of employment, and contracts between landlord and tenant, terms are implied by statute. In the absence of statutory provision the cases in which the Courts will imply a term into a contract are strictly limited: it is not their task to make contracts for the parties concerned, but only to interpret the contracts already made.(Phillips Electronique Grand Pulique S.A. v. B.S.B. Ltd.(1995) E.M.L.R.472 Nevertheless, in certain circumstances the Courts are prepared to imply terms into even a written contract. The Courts do not imply terms where it would be reasonable to do so but only where it is necessary to give business efficacy to the contract. Here the implication of a term is normally said to depend upon an intention imputed to the parties from their actual circumstances.(Luxor Ltd. v. Cooper(1941)A.C.108 In certain type of cases where the parties have left lot unsaid, when the court implies a term, it is sometimes laying down a general rule that in all contracts of a defined type some provision is to be implied as an incident of the particular type of contractual relationship unless the parties have expressly excluded it, and it is somewhat artificial to attribute such terms to the unexpressed or implied intention of the parties. ‘Liverpool City Council v. Irwin’(1977) A.C.239 A similar process takes place where a term is implied by a trade custom. Bibliography: J.Beatson. Anson’s Law of Contract (28th ed.) Oxford University Press Bangia,R.K. Contract Law.ALA. Chittty on Contract(29th ed.). Sweet & Maxwell Read More