(B) DEFINING PUBLIC AUTHORITIES
‘Public authorities’ may be defined widely to include the emanations of the State in whatever form. Consequently, a ‘public authority’ can include central and local authorities, Universities, ‘Non-Departmental Public Bodies’,[1] and even nationalized industries. Some of the issues raised in this chapter will also be applicable to privatized public utilities. Although these utilities are in form no different from any other company which is motivated by the need to make profit, so that notions of jeopardizing their finances should only be of a secondary concern, public utility companies maintain a powerful, sometimes near monopolistic, position so that they can be considered to straddle the public and private law divide. This raises important questions as to whether any different considerations should apply in respect of restitutionary claims brought against such companies.
Most of the cases concerning restitution from public authorities involve payment of tax to the Revenue, known as Her Majesty’s Revenue and Customs (HMRC). The defendants in these cases are the Commissioners for Her Majesty’s Revenue and Customs. This is a non-ministerial department linked to the Treasury, which is part of the executive arm of government.[2] Consequently, although the Commissioners are nominally the defendants in the restitution claims, since they are embedded within the executive arm of the Government, and the tax monies raised are paid into the Consolidated Fund and spent by the Government, it is appropriate to treat the defendant as effectively being the Government. Consequently, in this chapter ‘the Revenue’ and ‘the Government’ will be used interchangeably to identify the defendant.
