Should Public Health Be a Private Concern? Developing a Public Service Paradigm in English Law

Abstract

This article explores the tension between the fundamental perception that the provision of privatized services such as health and social care remain inherently public and the absence of any clearly developed juridical concept of 'public services' as the basis of judicial control in accordance with public law standards. In a series of recent cases, courts have had the opportunity to determine whether private contractors engaged in the provision of local authority residential and social care services are amenable to judicial review or susceptible to direct vertical proceedings under the Human Rights Act, on grounds that they are performing functions which are by their very nature quintessentially public. However, conflating questions of amenability to review and susceptibility to the Human Rights Act (hereafter HRA), courts have refused to adopt a test based on the public character of a body's functions, irrespective of the source of power. This article acknowledges the constitutional propriety and rationality of a broad based functional test of review. Nevertheless, it is argued that if courts continue to resist such a test, Parliament must legislate to ensure judicial regulation of decisions by independent contractors of health and social care services, in accordance with public law principles and HRA obligations, which transcend the boundaries of their strict contractual undertakings.