Functions of a Public Nature

February 13th, 2019 by James Goudie KC

Fearn and Others v Board of Trustees of the Tate Gallery (2019) EWHC 246 (Ch) is an injunction case brought in nuisance and under the Human Rights Act 1998 (“the HRA”) to protect what are said to be Article 8 rights of privacy in flats in a development on the south side of the Thames adjacent to the Tate Modern. One issue, under Section 6(3)(b) of the HRA, was whether the Tate, given Section 2(2) of the Museums and Galleries Act 1992, significant public funding, and controls by state officials, is a “hybrid” public authority against whom the HRA can be directly enforced.

Mann J addressed the law on “hybrid” public authorities from paragraph 108 of his Judgment, and the question whether the Tate is such an authority from paragraph 121. At paragraph 123 he said that the Tate displayed, to some degree, some of the factors which are said in the authorities to be relevant to the question whether the Tate is exercising public functions. None of them, however, were determinative.At the end of the day a “global assessment” has to be made. The “key question” is “whether the activities of the Tate are governmental in their nature”. Mann J concluded that they are not.

Museums, in offering displays and education to the public, and advancing the cause of art to visitors, are not discharging a governmental activity. That was not changed by the facts that the Tate was formed by statute, has public funds, and, as a publicly funded body, is subject to constraints on some of its activities.  It is not generally fulfilling a delegated function of the state. It is not acting on the direction of, or in place of, a government department.

It followed that the Tate is not exercising “functions of a public nature”, either in relation to the general activities of the Tate Modern, or in respect of the operation of its viewing gallery.  The Tate is not a “hybrid” public authority.

Local authorities of course are “core” public authorities. However, it is often of concern to them whether another body is a public authority for HRA (and/or other purposes), not least if leisure, cultural or other activities that have been conducted by the local authority itself may be transferred to an outside agency.

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