#17232 - Amenability To Judicial Review - GDL Constitutional and Administrative Law

Core public bodies: local authorities and statutory tribunals.

Factors for determining amenability to JR:

• A function of a public nature

• Public importance of the function

• Source of the power exercised

• Duty to act judicially

• Motivation for using power.

• Voluntary submission of the parties to the body’s powers.

The classic definition:

• R v Electricity Commissioners, ex p London Electricity [1924] – (facts irrelevant) Atikin LJ:

  • “Extends to anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially.”

• R v Criminal Injuries Compensation Board, ex p Lain [1967] – challenge to the CICB. CICB argued it did not have legal authority as its powers were established by prerogative not statute, and that it was not determining the rights of subjects as its awards were ex gratia.

  • Lord Parker: “The only constant limits throughout were that it was performing a public duty.”

  • i.e. there are to be no limits to the power of the courts in judicial review. An explosive statement that did not get much notice at the time.

The High-Water Mark of Reviewability:

• R v Panel on Takeovers and Mergers, ex p Datafin [1987] – A private City institute that devised rules for takeovers and mergers. A company made a complaint and sought review. Panel was held ameaable

  • Lloyd LJ: “if the body is exercising a public law function, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review.”

  • i.e. All that is required for reviewability is some public element

The Hypothetical Disappearance Test:

• R v Advertising Standards Authority, ex p Insurance Service (1989)

  • Glidewell LJ: if this body were to abdicate its functions overnight, would the government be compelled to replace the body.

• Applied in: R v Bar Council ex p Percival held parliament would have brought in a body to regulate barristers if bar council did not exist.

A ‘domestic tribunal’ is generally not subject to review. These are bodies with whom you have a contract/voluntarily submitted to:

• Law v National Greyhound Racing Club [1983] – NGRC had suspended his licence after finding a prohibited substance. Club argued should have proceeded by JR. Court held this was wrong: had a contract with the club and had voluntarily submitted to them (no one required the plantiff to be a racer of greyhounds).

• R v Football Association ex p Football League (1991) FA held not amenable to JR as a domestic tribunal.

• R v Jockey Club, ex p Aga Khan [1993] – horse disqualified after traces of prohibited substance found. Club incorporated by Royal Charter, but held that this was besides the point (merely recognised Royal Family’s interest in racing). CA held unanimously not reviewable.

  • Bingham LJ: although under hypothetical disappearance test government would step in, the powers it had were not governmental.

  • Farquharson LJ: argued government would not step in under hypothetical disappearance test. A domestic tribunal.

  • Hoffmann LJ: also agreed that the club failed the hypothetical disappearance test, the club’s powers were not governmental.

    • Aga Khan had remedies available in private law due to the contract.

• R v Chief Rabbi, ex p Wachmann [1993] – Chief Rabbi set up commission to enquire suspected adultery. On this basis advised Wachmann be sacked.

  • Held the...