PUBLIC, PRIVATE AND THE HUMAN RIGHTS ACT 1998: AN IDEOLOGICAL DIVIDE

only against public authorities.2 The issue of whether a body is a public authority has proved highly controversial. The hiving-off of many traditional governmental functions through policies such as privatisation, outsourcing and projects under the Private Finanace Initiative (PFI) has led to a blurring of the traditionally understood publicprivate distinction.3 The changed nature in the way that public services are delivered has led to sharply divergent views among the judiciary about which functions are those of a public nature for the purposes of the Human Rights Act. This is evident in the YL judgment itself: a split decision, with two dissenting judgements.4 The division in the House reflects different understandings of the operation of the Human Rights Act, the public-private distinction and, perhaps more fundamentally, competing ideological stances. The decision also suggests that the ghost of Dicey still haunts the development of public law in our legal tradition. Dicey's premise that the Rule of Law admits of no separation between public and private law and that all people were subject to the ordinary laws of the realm inhibited the development of public law.5 The first inkling of change occurred during the 1960's.6 Influenced no doubt by EC and human rights law, gradually the judiciary began to establish substantive public law rules and principles. It is ironic that just as public law became more established and effective in the control of government power, the state began to shrink and the pattern of government to change. The transformation of the delivery of public services poses a serious threat to public law values, to ensuring public accountability and to the