Friday, November 04, 2011

Are TFL, LT&PH, STC and CoLP all Guity of Negligence

Are TFL, LT&PH, STC and CoLP all Guilty of Negligence
Reposted from the LCDC blog.
In 2009–10, there were 143 reported cab-related sexual offences including 24 rapes although we expect the actual number to be higher given the significant under-reporting of sexual offences generally. Cab-related sexual offences account for over 10% of all sexual offences in London committed by offenders not previously known to the victim.
Written evidence from Transport for London (TPH 46)
Given to the House of Commons Transport Committee
Taxis and private hire vehicles: the road to reform Seventh Report of Session 2010–12 Volume II
Now that Transport for London(TFL) have now officially recognised that the figure for sexual assaults by Licensed and unlicensed Private Hire Drivers is much higher,could this lead to mass sackings in TFL, LT&PH, STC ,CoLP, for Negligence for failing in their Duty of Care to Protect the Travelling Public
The Legal Definition of Negligence.
Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.
The ramifications to go all the way to the Top.
The Mayor of London Boris Johnson could be Liable of negligence for Failing in his Duty of Care.
Kit Malthouse, the Deputy Mayor for Policing, could be Liable of negligence for Failing in his Duty of Care.
Chief Superintendent Sultan Taylor, Safer Transport Command,could be Liable of negligence for Failing in his Duty of Care and not enforcing the Law
John Mason the director of London Taxi and Private Hire could be Liable of negligence for Failing in his Duty of Care and not enforcing the Law.
Mr Adrian Leppard Commissioner – of The City o London Police could be Liable of negligence for Failing in his Duty of Care and not enforcing the Law.
All of the above would state that they have made great progress in tackling minicab touts across the capital, and have arrested over 3 thousand touts but they aint seeing the bigger picture.
If any Victim of Rape or Sexual assault was attacked as a direct result by a Private Hire Driver that was illegal Ranking up or Plying for Hire outside a late night venue that as been licensed by London Taxi and Private Hire (LT&PH) to Operate a Minicab Booking Centre from inside that venue would leave them open to a Legal challenge of Negligence, for failing in their Duty of Care to protect the travelling Public and not enforcing the law
Also If any victim of rape or sexual assault that was attacked as a direct result by a private hire driver that was illegal ranking up and plying for hire in London could bring a case against Safer Transport Command(STC),and the City of London Police(CoLP) for failing in their Duty of Care to protect the travelling public for not making one single arrest of a Private Hire Driver under the Town Police Clauses Act 1847 for Ranking up and Plying for Hire in London in what we belive could stretch back 10 or more years.
The compensation pay outs to theses victim’s that could date back ten or more years if proven could run into Millions of pounds
Head of TFL Peter Hendy even tried to cover up these figure by misleading the public and putting many lives at risk when he stated live on LBC radio when questioned about these figures,he said that he didn’t recognise the above figures and it was just propaganda by the cab trade.
The London Cab Drivers Club attend a meeting with John Mason the Director of London Taxi & Private ,” when asked why they are not arresting (PHD) for Ranking up and Plying for Hire their reply was that our licensing officers don’t have the legal authority to arrest (PHD) for Ranking up and Plying for Hire”,and that the Town Police Clauses Act 1847 was not enforceable in London, really John …..??


Plus....

TFL admit Sexual Assults by Touts could be higher.

Reposted from LCDC blog.
House of Commons                
Transport Committee
Taxis and private hire                                              
vehicles: the road to
reform
Seventh Report of Session 2010–12
Volume II
Additional written evidence
Ordered by the House of Commons
to be published 11 and 25 January, 1 and 8 February, 8, 15 and
22 March and 26 April
Written evidence from Transport for London (TPH 46)
1. Introduction
1.1 Transport for London (TfL) welcomes the opportunity to contribute to the Committee’s inquiry into the licensing of taxis and private hire vehicles (PHVs).
1.2 TfL is the licensing authority for Taxi and Private Hire operators, vehicles and drivers in the Greater London area. TfL’s responsibilities include setting standards that operators must meet. London has about 22,000 licensed taxis and 50,000 licensed private hire vehicles, approximately 25,000 taxi drivers and 60,000 private hire drivers, and 3,000 private hire operators. London taxi services have been licensed in the current form for over 150 years, and licensing of the private hire trade was introduced following legislation in 1998.
1.3 The Committee is seeking evidence relating to cross-border hirings and other aspects of taxi and private hire licensing, particularly concerning passenger safety.
TfL wishes to consider two particular areas concerning passenger safety: the character checks conducted on licensed drivers through the Criminal Records Bureau (CRB); and the role of taxi and private hire services in late night travel, including enforcement against illegal cab activities.                   
2. Cross-border Hire Problems
2.1 Cross-border hire, in which a taxi or private hire operator takes bookings for trips in an area in which they are not based, is not currently a particular issue in London. However, this could change, particularly as measures are introduced to address issues particular to London, such as those contained in the Mayor of London’s Air Quality Strategy.
2.2 The Mayor’s Air Quality Strategy, which was recently published after a wide consultation including with the taxi and private hire trades, contains a number of proposals designed to improve air quality. These include the introduction of mandatory maximum age limits for taxis and private hire vehicles in London. This requirement would apply to taxi and private hire operators based in London only, as TfL has no jurisdiction to the area beyond the Greater London Authority (GLA) boundary.
2.3 Each authority around the country must consider appropriate licensing conditions for taxis and private hire services, bearing in mind local circumstances such as environmental issues. It is reasonable that licensing conditions may differ from area to area, as the issues which authorities face also differ.  However, this may lead to circumstances in which it is economically attractive for operators to be based in one area but offer bookings in another area which sets higher standards.
2.4 The relevant private hire licensing regime is determined by the authority where the booking centre is
based regardless of the journey origin and destination. This raises the possibility of a “call centre” private hire operation, with the operating centre based in an area with low licensing standards; bookings taken by telephone, internet or email; vehicles and drivers physically based in London but licensed in the same area as the operating centre; marketing in London and providing London journeys, with a competitive advantage over operators that comply with London licensing requirements.
2.5 Within London, modelling undertaken for the Mayor’s Air Quality Strategy shows that action is necessary to reduce harmful emissions from road vehicles and taxis in particular. However, if the cost of providing London taxi and private hire services is increased as a result of these measures, it may be economical for private hire operators based outside London to compete for London hirings. This would present unfair competition to London’s taxi and private hire operators, and would weaken the impact of the measures taken.
2.6 Some scope for cross-border hirings is necessary; particularly to serve areas close to local authority boundaries. However, TfL considers that some measures would be appropriate to restrict the scope of operators in one location to undertake bookings in another.
2.7 TfL considers it would be appropriate for legislation to clarify the circumstances when cross-border hirings are allowed and restrict the opportunities for operators and taxis to choose to be based in one area but serving the market in another.
Transport Committee: Evidence Ev w61
3. Enhanced Criminal Records Bureau (CRB) Checks
3.1 TfL welcomes the opportunity to raise other areas of concern relating to taxi and private hire licensing.
3.2 TfL is responsible for licensing of all London’s taxi and private hire drivers and must ensure applicants are fit and proper persons that do not pose a threat to the travelling public. TfL currently has around 80,000 driver licensees and the licensing authority must be satisfied that the applicant meets the fit and proper person criteria in order to obtain a licence. As such, all applicants must undergo a CRB check. The disclosures assist TfL in determining whether or not public safety would be compromised by granting an individual a licence.
3.3 The CRB Disclosure process has two levels: Standard and Enhanced. Prior to using the CRB Disclosure service, TfL and other licensing authorities considered which level of CRB Disclosure would be appropriate for taxi and private hire licence applicants. TfL concluded that it would request Enhanced Disclosures for all applicants because taxi and private hire drivers can, at any time and without prior knowledge, be in sole charge of passengers who are less than 18 years old or are vulnerable adults. In addition, they often come into contact with other individuals, who legally may not be classed as vulnerable but may be so due to medical or social reasons, such as being under the influence of medication, alcohol or drugs. These individuals (at those times) need to be protected from predators who could take advantage of them whilst they are in a vulnerable state.
3.4 Enhanced Disclosures can include “soft intelligence” from the local Police services in certain circumstances. Soft intelligence reports can contribute towards decisions TfL take in regard to a taxi or private hire licence application. It is worth noting that intelligence obtained by this method includes information on alleged sexual assaults (including rapes), terrorist activities, organised crime and drug dealing.
3.5 In its position as the licensing authority TfL reviews information that is brought to its attention and takes a balanced view on whether or not to issue the licence. TfL assesses information provided by Enhanced Disclosures to not only consider applicants’ criminal histories but to also give consideration to `patterns of behaviour’, which may be illustrated by the “soft intelligence” provided. Taxi and private hire drivers can, by the very nature of their roles, be called upon to carry children or vulnerable adults at any time and often come into contact with other individuals who are under the influence of medication, alcohol or drugs, particularly at night.
3.6 TfL recently sought further clarification from the CRB following the introduction of the Vetting and Barring Scheme. The CRB Policy Department responded that that the CRB do not consider that taxi and private hire drivers meet the criteria for Enhanced checks and TfL should be requesting Standard disclosures.
3.7 Between 2002 and 2008, some 2,400 applicants for both taxi and private hire licences have been refused on character grounds. Of these, some 10% have been refused based on “soft intelligence” revealed by an Enhanced Disclosure. Not allowing TfL to access this information therefore poses a significant risk.
3.8 Under an Enhanced Disclosure, checks may be requested against Protection of Children (POCA) and
Protection of Vulnerable Adults (POVA) lists in some circumstances. After seeking clarification from the Director of Operations at the CRB, TfL requested additional checks against both lists for all licence applicants. In 2008, TfL was informed by the CRB that it was not entitled to request checks for taxi and private hire drivers against the POVA list as this can only be obtained for those within the Domiciliary Care Agencies,Care Homes and Adult Placement Schemes. Accordingly TfL ceased requesting POVA checks, but continued to request checks against the POCA list as part of an Enhanced Disclosure.
3.9 TfL recommends that it should be permitted to request Enhanced Disclosures for every taxi and private hire licence applicant. In addition, TfL and other relevant agencies should be permitted to request checks of taxi and private hire driver applicants against the POVA list.
3.10 Similar issues arise in respect of taxi and private hire licence applicants services outside London and so TfL suggests that all licensing authorities should be permitted to request the requirement for Enhanced CRB Disclosures should be applied nationally.
3.11 There is also the issue of antecedent checks for applicants who immediately before their application for a licence lived and worked outside the UK. Although the Enhanced Disclosure gives good information on the character history of UK residents, information on those who have lived and worked overseas is less comprehensive. Applicants who have spent more than three months living outside the UK within the previous three years are required to provide additional information about their history and a Certificate of Good Conduct is sought from the authorities in the countries concerned. This is necessary for up to 10 per cent of new applications.
3.12 Not all countries provide a Certificate of Good Conduct, and where provided the information is generally of less detail than that contained in the Enhanced Disclosure. There is also concern that Certificates of Good Conduct from some countries may not be based on as thorough and rigorous checks as those checks conducted by the CRB. This leaves a risk that TfL may not be aware of convictions or misconduct by people who have lived overseas. In at least two cases, offences committed overseas have come to light in investigation of serious offences by licensed drivers, which would have been reason to refuse the licence applications had they been known.
Ev w62 Transport Committee: Evidence
3.13 Public safety could be improved by better arrangements for collaboration and information exchange between UK and international police agencies, and TfL would like to see the Government give priority to
this area.
4. Late Night Travel
4.1 Taxis and private hire vehicles provide important options for travel late at night, when rail and Tube services are closed and bus services are more limited than in daytime. A late night travel survey commissioned by TfL in early 2010 showed that 13% of journeys home after a night out were made by taxi or private hire vehicle (7% in taxis and 6% in booked minicabs) with an additional 5% in illegal hires (this includes unlicensed minicabs and licensed private hire vehicles touting illegally).
4.2 While London is safe for most people travelling at night there are major concerns over the dangers of travelling in unbooked minicabs picked up off the street. Despite significant progress over recent years, illegal cabs remain a serious problem in London and are an under-rated danger of the Capital’s night life. These cars are unregulated and uninsured for the purposes of carrying passengers and in some cases are linked to more serious crimes such as sexual assault, robbery and arms and drugs offences. There is also evidence of increasing issues with aggressive and violent touts who are intimidating to members of the public and law abiding taxi and PHV drivers.
4.3 In 2009–10, there were 143 reported cab-related sexual offences including 24 rapes although we expect the actual number to be higher given the significant under-reporting of sexual offences generally. Cab-related sexual offences account for over 10% of all sexual offences in London committed by offenders not previously known to the victim.
4.4 Touting and associated issues are being addressed through a partnership approach involving enforcement,education and improvement of legitimate travel options including licensing and regulation of the taxi and
private hire industry. TfL and the police use a broad menu of tactics to deter, disrupt and detect illegal cab activity.
4.5 TfL is also working with the police and other partners to educate the public about the law relating to taxis and private hire vehicles, raise awareness of the dangers of illegal cabs and provide the public with better access to safe travel options. While this multi-media campaign has been extremely effective in reducing female usage of illegal cabs (from 19% in 2003 to 5% in 2010) perpetrators continue to adapt their methods to avoid
police detection and deceive the public into believing that they are providing legitimate services, putting the public at risk.
5. Enforcement Against Illegal Cab Activity
5.1 Enforcement against illegal cab activity is a priority for TfL and the Mayor of London, highlighted in the Mayor’s Transport Strategy. In 2008, the Mayor introduced tougher regulatory penalties for any licensed private hire vehicle driver convicted of touting, and to date, over 400 licensed private hire vehicle drivers convicted of, or cautioned for, touting have had their private hire vehicle licences revoked for a minimum of one year. Despite this, in many instances, these drivers merely return to the streets unlicensed.
5.2 The MPS Safer Transport Command’s cab enforcement unit has made over 6,000 arrests for touting and dealt with another 2,000 offences by way of summons since its inception in 2003.
5.3 There remain concerns, however, that the penalties for drivers found to be touting are still too lenient and inconsistent in many cases. The current maximum fine that can be imposed for touting is £2,500 and £5,000 for driving without insurance (which applies to any driver touting, as any hire and reward insurance is invalidated).
5.4 Sentences in individual cases are a matter for the courts, taking into account the circumstances of the offence, including all mitigating and aggravating factors in accordance with the Sentencing Guidelines. In 2004, TfL and the Mayor of London raised concerns with the Home Office about the inconsistency and leniency of penalties being imposed for taxi touting. The average fine after sentence is around £135, which is not considered high enough to be seen as a deterrent. In addition, the level of fine varies from case to case. The inconsistency of penalties continues to be an issue and we ask for the Government’s support in helping to address this.
5.5 The Mayor of London, TfL and its policing partners urge the Government to introduce tougher penalties for touting which will help to deliver more effective enforcement against perpetrators and will create a safer environment for the travelling public. Suggested measures include:— Increasing the penalties for touting and unlawful plying for hire offences including higher fines and immediate driver licence disqualification following conviction or acceptance of a cautionfor touting.
Transport Committee: Evidence Ev w63
— Powers to seize and dispose of vehicles used in touting and unlawful plying for hire offences (powers under Section 165A of the Road Traffic Act 1988 to seize motor vehicles being driven without insurance or a valid driving licence do not extend to seizing vehicles being driven without valid hire and reward insurance, although this insurance is compulsory for hire and reward activity).— Clearer legal definitions for touting and unlawful plying for hire offences to improve regulation and enforcement.
December 2010

Wednesday, November 02, 2011

Proposed Tariff Increase for 2012.

Is this financial suicide?


Proposals
3
Annual revision – general change in tariffs

3.1
We propose that the tariff review for 2011 will adhere to the three basic principles used in previous years to guide fare revisions. These are:

Using the taxi cost index to guide the increase in average fares;

Maintaining reasonable differentials between the day, evening/weekend and late night tariffs;

Maintaining a reasonable progression of fare with journey length.

3.2
A list of the current status of the cost index elements is attached as Annex B. The final cost index figures will be published in early December, allowing time to consider the final index value in responding to this consultation.

3.3
We propose to increase overall average fares by the cost index percentage, subject to the adjustment discussed below. This increase will take effect on 14 April 2012. (this would normally fall on the first Saturday in April, but in 2012 this coincides with the Easter weekend)

3.4
The increase would normally be implemented by keeping the flagfall fixed and changing the distances and times covered for each 20p unit however, it has been suggested that the flagfall should be increased this year from £2.20 to £2.40. No other changes to the tariff structure or to the extras that can be charged are proposed for 2012, apart from any changes discussed below for the London Olympic/Paralympic Games.

3.5
The increased tariffs in the evenings, at weekends and at night encourage drivers to work at these times, when supply of taxis has been poor. Although supply is good in many areas at night at the moment, this is largely the consequence of the current depressed economic climate and it is appropriate to maintain the present differentials.



The proposed tariff increase for next year is 5.2%. This will give an increase per mile on:
Tariff 1 £0.16
Tariff 2 £0.18
Tariff 3 £0.22
Tariff 4 £0.22

5.5 TfL seeks your views on the scale of the increases and suggestions for additional schemes.

6 Taxis during Games time

6.1 General

6.2 During the summer of 2012, London will host the Olympic and Paralympic Games. These major events will mean significant changes in travel behaviour throughout London, with changes to the road network, large numbers of visitors and a campaign to reduce levels of travel by Londoners.

6.3 The Olympic Games begin with the opening ceremony on the night of Friday 27th July 2012 and continue until the closing ceremony on the night of Sunday 12th August. The opening ceremony for the Paralympic Games takes place on Wednesday 29th August and the Games close on Sunday 9th September.

6.4 Separate discussions are taking place with trade associations and other interested parties about the impact of the Games and the facilities for taxis at venues and elsewhere. A significant communications campaign is planned to give all London taxi drivers full information about taxi service during the Games in the run-up to the events.

6.5 There is some uncertainty about the impact of the Games on the taxi trade, but it is important that a good taxi service should be available to serve London’s businesses, residents and visitors, particularly those with mobility needs.

6.6 Suggested premium on all fares during Games time.

6.7 In order to encourage taxi drivers to work at Games time, one of the taxi driver associations has suggested that there should be a premium on fares during the relevant periods. The proposal is that tariff 2 should apply at the normal times for tariff 1 (Monday-Friday 6 am – 8 pm) and tariff 3 at other times. This would give fares approximately 22 per cent higher at all times except late at night.

6.8 Current fixed fare schemes operate almost entirely within the times covered by Tariff 1, but there could be high levels of demand at Games time at weekends or late night. It is proposed that additional provision should be made for Tariff 2 fares approximately 20% higher than Tariff 1, and Tariff 3 about 40% higher than Tariff 1. These are shown in the table below.

6.9 Fares for different tariffs

6.10
Tariff 1 fare £5.00
Tariff 2 fare £6.00
Tariff 3 fare £7.00

6.11
An alternative proposal would be to allow a 40p or 80p extra to be added to fares during Games time, adding about 4 or 8 per cent to fares.

10.4
Consultation responses must be sent in writing by 28 November 2011. Responses by email should be addressed to: PCO.consultation@tfl.gov.uk They can alternatively be sent by post or fax to:
Taxi Fares Regulations Consultation, London Taxi & Private Hire, TfL 4th Floor Yellow Zone Palestra, 197 Blackfriars Bridge Road London, SE1 8NJ Fax number: 020 3054 3160

If you are responding by post, please submit two copies in total of your response.



Comment Taken from the LTDF:
The effects of any change will depend on the charging structure that the Private Hire decide to implement. The Olympic lanes will create traffic gridlock, but for us at least the meter will keep running (if pob of course) but for the minicab sitting in traffic, this time is un-paid. 


This will be highly detrimental to both the drivers and the proprietors (good news for us) and so I suspect they will implement some kind of Olympic charge to off-set any losses caused by the reduction in Londons average traffic speeds. 


Add/Lee has a fleet of cars that will be stuck in traffic caused by the Olympic lanes sadly for them the drivers they employ have neither the intelligence nor the skills to navigate around the problems (any one of you who use a sat nav will know the issues these machines have with road closures.....they keep trying to send you back on the same route you just left). The big question is will Griffin tell his drivers to use the Olympic lanes.........margolis

Saturday, October 29, 2011

Legal Requirements, Following correct procedure


Please see document below which defines the legal requirements for a Public Body. It clearly shows that the decisions have to
1/Follow correct procedure
2/ Be Rational and Evidence based
3/Have proper purpose
4/to comply with the European Convention for Human Rights
5/To be Proportionate
6/To be properly Reasoned

TFL fail on most of these points on most of their decisions.

It may be good to make this available to drivers along with a template letter of complaint for them to send to their local MPs or MEPs.

Legal Requirements
Following correct procedure
A decision maker will frequently be required to follow a set procedure for making its decisions. This may take the form of procedural requirements set out in statute, statutory instrument, guidance (whether statutory or non-statutory) or a procedure which the decision maker has set for itself. Any such procedure will usually have been drafted with the purpose not only of guaranteeing that the decision maker takes into account all relevant considerations but also to ensure procedural fairness for those affected by the decision it is required to make.
Departure from an established prescribed procedure in itself can give rise to a successful legal challenge, by way of judicial review for example, even if no unfairness results:
“… susceptibility to judicial review under this head [procedural impropriety] covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice” (per Lord Diplock, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 411A-B).
Examples of prescribed procedures for decision makers include:
·        express duty to consult
·        express duty to serve notice
·        express duty to publish agenda
·        express duty to seek written representations
·        express duty to hold oral hearing if requested
·        express duty to give reasons for decision
·        express duty to be informed of right of appeal

Rational and evidence based
Whether a public body has a duty or discretion to exercise in making its decision, that decision must be rational. 
An irrational or unreasonable decision is one that was not reasonably open to it, as expounded by Lord Green MR in theAssociated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223.
Meaning of irrationality
“Unreasonableness can include anything which can objectively be adjudged to be unreasonable.  It is not confined to culpability or callous indifference.  It can include, where carried to excess, sentimentality, romanticism, bigotry, wild prejudice, caprice, fatuousness or excessive lack of common sense” In Re W (An Infant) [1971] AC 682, per Lord Hailsham at 699H
“a decision which does not add up” (
R v Parliamentary Commissioner for Administration, ex parte Balchin [1998] 1 PLR 1)
“a decision which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, per Lord Diplock at 1064 E-F)
Decisions makers are given a degree of latitude by the courts when challenged by way of judicial review on grounds of unreasonableness. The Courts recognise that the decision was for All relevant considerations
An aspect of reaching a rational and evidence-based decision is taking all relevant factors or considerations into account.  This was made clear by the House of Lords in Anisminic v Foreign Compensation Commission [1969] AC 147, but the principle is more simply enunciated by Lightman J in R v Director General of Telecommunications, ex parte Cellcom Ltd [1999] COD 105:
“The Court may interfere if the Director has taken into account an irrelevant consideration or has failed to take into account a relevant consideration”.
This does not mean that a decision maker must consider all extraneous material, but it should have before it as much information as possible that is relevant to the decision that it is about to make. Deciding what is relevant and what is not depends on the subject matter of the decision, but examples include:
·        the proposal
·        responses to consultation or written representations received
·        guidance on parameters for decision
·        cost of decision
·        effects of decision on others
·        advice from officers
Examples of irrelevant considerations include:
·        the need to get business finished quickly
·        assumptions not based on evidence
·        personal experience of a different situation
·        dislike for the person affected by the decision or what they represent
Proper Purpose
A public body must not act in bad faith, which is akin to dishonesty (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, at 229).
It must act for a proper purpose. Those making public decisions must not have ulterior motives and must apply their minds when making decisions for the correct statutory objective (Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997).
Examples of Improper Motive
·        exercising local authority powers for the electoral advantage of a particular political party (Magill v Porter [2001] UKHL 67)
·        land acquisition for re-sale at a profit
·        to protect an unborn child from the mother’s right to refuse medical intervention
·        delaying a process so that a challenge to it became time-barred
ECHR-Compliant
It is unlawful for any public body to act contrary to one of the rights contained in the European Convention on Human Rights (“ECHR”) that has been incorporated into domestic law by the Human Rights Act 1998 (“HRA”)(section 6(1) HRA).
“Public bodies” for this purpose are defined in section 6(3) of the HRA as follows:
“6(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.”
Schedule 1 to the Freedom of Information Act contains a list of public bodies for the purposes of that Act. This provides a useful starting point for checking whether a particular decision maker is likely to fall within the definition contained in section 6(3) HRA. However, it is only a starting point; what matters in deciding whether a decision maker falls within the definition is whether the body in question is exercising public functions.
A variety of cases have considered the question of what amounts to a functional public authority for the purposes of section 6(3)(b) of the HRA: see here.
A review of this case law provides a private body is likely to be held to be performing public functions under section 6(3)(b) if:
·        its structures and work are closely linked with the delegating of power or contracting out from a State body; or
·        it is exercising powers of a public nature directly assigned to it by statute; or
·        it is exercising coercive powers devolved from the State.
Other factors such as the following may all be taken into consideration, perhaps cumulatively, in determining whether a function has sufficiently public “flavour”:
·        the fact of delegation from a State body,
·        the fact of supervision by a State regulatory body,
·        public funding,
·        the public interest in the functions being performed, or
·        motivation of serving the public interest, rather than profit
The ECHR contains the following articles that have been incorporated into domestic law that may be relevant to public bodies making decisions.
Article 6 is likely to be of particular relevance to decision makers sitting in a quasi judicial capacity and holding hearings. It provides as follows:
Article 6 Right to a fair trial
1.    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2.    Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3.    Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Breach of an ECHR right by a decision maker may render its decision not only unlawful but subject to an action for damages: see section 8(3) HRA (and R (Bernard) v Enfield Borough Council [2003] HRLR 111 for an example).
Proportionate
Public decision makers should act in a way that is proportionate.  While the common law does not necessarily accept proportionality as a freestanding ground for judicial review, it is a principle embedded in  both EU and ECHR law and consequently touches upon most of the decisions taken by public bodies:
“[Proportionality] is one of the fundamental principles of Community law, standing alongside such other principles as those of equal treatment and legitimate expectation. it has not so far (perhaps unfortunately) found any very promising seedbed in English domestic law. It is not anywhere vouchsafed in the EC Treaty; rather it is part of what may perhaps be called the common law, or the internal law, of the Community, having been developed by the Court of Justice as an integral part of the legal discipline applied by that court to the Community institutions in relation to their implementation of the Community legal order. When member states also act to implement Community law, or to take measures necessarily relying on exemptions from Treaty obligations provided by Community law, they too will be subject to this internal law” (R v Secretary of State for the Environment, ex parte Oldham Metropolitan Borough Council [1998] ICR 367, per Laws J at 384H to 385A)
“Reference to the Human Rights Act 1998 … makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied” (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, per Lord Slynn at [51]).
A decision that is proportionate, is also likely to be rational, evidence-based and reasonable (see R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, per Lord Lowry at 766D-E): “reliance on proportionality is simply a way of approaching the Wednesbury formula: was the administrative act or decision so much out of proportion to the needs of the situation as to be “unreasonable” in the Wednesbury sense”.
Properly Reasoned
Procedural requirements may specify that a public body must give reasons for its decisions. It should do so in any event, not only because the common law may require it to do so, but because a well reasoned decision will inform those affected fully about the decision the body has taken. Reasoned decisions also enable those affected to consider whether to subject it to legal challenge, and on what grounds and well reasoned decisions help public bodies withstand legal challenge by explaining their thought processes.
The process of setting out written reasons for a decision also improves the decision making process by making the decision maker focus on the logic lying behind his decision (R v Brent LBC, ex parte Baruwa (1996) 28 HLR 361).
Reasons do not need to be excessively detailed, but do need to be adequate. Adequate reasons are reasons that:
·        deal with all the substantial points that have been raised
·        are sufficient for the parties to know whether the decision maker has made an error of law
·        set out and explain key aspects of the decision maker’s reasoning in coming to its conclusion
·        include all aspects of reasoning that were material to the decision made
·        but do not need to set out in detail all the evidence and arguments referred to the decision maker
Decision makers should record the reasons for their decisions at the time they are made.  In the event of a subsequent appeal or other legal challenge, it will not usually lie open to them to elucidate, correct or add to their reasons at a later stage (see e.g. R v Secretary of State for the Home Department, ex parte Lillycrop (unrep 27.11.96)).

he public body to make, not the court, and so they are reluctant to interfere where they might disagree with a decision but it is objectively rationally made.