Making Sense of the Public-Private Divide

Abstract

This thesis explores the public-private divide. Its primary focus is on two distinct but interlinked contexts: the amenability of bodies to judicial review in domestic law and the notion of ‘public authority’ under s 6 of the Human Rights Act 1998 (HRA). It also focuses secondarily on the notion of the governmental organisation in Strasbourg. The aim is to re-order the law in all three areas, providing an account of the law that is both doctrinally accurate and normatively defensible. The core argument is that, in both of the primary contexts, at the root of the public-private distinction lies an approach that defines ‘public’ activity as the exercise of legally-authorised coercive power. This is called the ‘LACPA’ for short. The LACPA is functional in outlook and sufficiently flexible to bring private bodies performing delegated public functions within the purview of public law. As such, this thesis challenges the orthodox view that the courts’ approach to the public-private divide is ill-equipped to deal with trends in modern governance and needs a major overhaul. Instead, fine-tuning and a better judicial appreciation of the existing law are all that is required.