Exploring the Meaning of “Public Authority” under the EISRs and Defining the Way Forward

1. Exploring the Meaning of “Public Authority” under the EISRs and Defining the Way Forward

2. Daradjeet Jagpal Solicitor and Public Sector Practice Group Leader 21 October 2010

3. Overview • Examine the tests that assist in determining the meaning of “public authority” under AEI legislation • Define a way forward for Scotland

4. The EISRs

5. 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.

6. 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

7. 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

8. 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 authority’s shoes • local authority trusts • Dynamic, case-by-case basis • Public responsibilities, services and functions must relate to the environment

9. 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

10. UK EIRs

11. 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.

12. 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

13. Experience gained • ICO decisions • Information tribunal decisions • Require EU Commission guidance on definition of “control” and “public administration function”

14. 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”

15. 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?

16. Aarhus Convention and EU Directive

17. 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...

18. Aarhus Convention, Guidance • Does little more than state the obvious – supranational instrument • Recommends creation of lists at national level

19. 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).

20. 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)

21. Other Jurisdictions, Emanation of the State and Human Rights

22. 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

23. 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

24. 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

25. Defining the Way Forward

26. Contact Daradjeet Solicitor and Public Sector Practice Group Leader 21 October 2010 t/ 0141 227 9403 e/ daradjeet.jagpal@harpermacleod.co.uk