Although the difference between ‘public’ and ‘private’ appears simple in theory, in English law the distinction can be uncertain. The trend towards privatisation and contracting-out to the private sector of functions once carried out by the State has blurred the line between what is public and what is private. These new forms of governance have challenged the traditional ambit of the
State and given rise to the question of whether private bodies, acting on behalf of the State or exercising functions of the State, should be subject to duties to serve the public interest and higher standards of accountability in the same way as public bodies. At present, when private bodies exercise public functions, individuals are inadequately protected against the abuse of power.
This paper considers the controversy surrounding this issue and concludes that the public/private divide is an outdated concept in English law which should be abolished in order to control abuses of power and to ensure that those exercising power are subject to the same standards of accountability.
Keywords: Public/Private divide, Judicial Review, Human Rights Act 1998, Privatisation, Contracting out, Accountability.
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