Presentation on theme: "Exploring the Meaning of Public Authority under the EISRs and Defining the Way Forward."— Presentation transcript:
Exploring the Meaning of Public Authority under the EISRs and Defining the Way Forward
Daradjeet Jagpal Solicitor 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
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 authoritys 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
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
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