Essay on the evolution of notional duty situations within the public sector
The fundamental mechanism of enforcing private citizen rights within most modern legal systems is to provide a network of correlative duties and rights. Our basic rights, especially with the introduction of the Human Rights Act 1998, are more than often arbitrated over by public sector bodies. The use of tort and judicial review for private citizens to enforce the duties such as housing, racial, sexual and disability equality, educational, religious, social, transport and many others has fluctuated throughout the 19th century.
It is this very myriad of public sector duties that make many of them notional; it is hard to tell to what extent these duties really confer rights on their citizens. The classic example of this is the duty contained within the The Housing (Homeless Persons) Act 1977 on a local authority to provide or secure accommodation for those that are homeless and ‘in priority need’. In the early 19th century there were many cases, the attitude was summed up by Lord Denning in De Falco v. Crawley D.C:
‘it is well settled that, if a public authority fails to perform its statutory duty, the person or persons concerned can bring a civil action for damages or an injunction’.
However a few years later it was stated in O’Reilly v. Mackman and O’Rourke v Camden LBC that no private remedy was available to private citizens and that it was only enforceable through public law remedies, they distinguished between those duties that were passed for the benefit of society as a whole and those that were aimed at individuals. The enforcement mechanism seems to turn on the nature of the right and nearly all those on public duties are too vague to be aimed at individuals and ruled out a cast majority of actions. The classic enforcement mechanism of any public duty is…
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Tags: civil litigation, duty, evolution, legal systems, public sector
