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The Public Law Framework The Public Law Framework
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Concurrent Liability—The Current Law Concurrent Liability—The Current Law
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The public authority's liability The public authority's liability
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Judicial review Judicial review
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HRA cases—general HRA cases—general
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Using the HRA 1998 to challenge contracting out Using the HRA 1998 to challenge contracting out
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Critique Critique
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Contract claims Contract claims
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Delegation Delegation
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Delegation at common law Delegation at common law
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General statutory authority to delegate General statutory authority to delegate
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Specific statutory powers to delegate Specific statutory powers to delegate
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A proposal for reform A proposal for reform
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Conclusion Conclusion
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8 Government Contractors: Public or Private?
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Published:September 2008
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Abstract
This chapter focuses on private firms which provide services directly to the public under government contracts, and considers whether, and if so how, they should be subject to public law norms. It reviews the case-law on the status of contractors under the Human Rights Act 1998 and in judicial review. It argues that the courts have adopted an unduly narrow approach. More generally, the chapter argues that the problems in this area stem from the government's failure to clarify the status of contractors when contracts are drafted. Although the law provides powers to delegate public functions to contractors, the matter is often left ambiguous. The chapter argues for a stronger public law framework on delegation in which the government is responsible for determining contractor status, subject to review by the courts. This would enhance accountability whilst providing greater certainty for contractors.
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