#14666 - Amenable Bodies - GDL Constitutional and Administrative Law

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Definition of a Public Body

CPR 54.1 that only public bodies are amenable to review

Historically certiorari was designed to put the decision of an inferior court into the hands of a superior court for ‘swift justice’ – Halsbury’s Laws describes its scope as “the determination of persons or bodies who are by status at charter entrusts with judicial functions”. It required:

1. Had decision makers gone beyond power

2. Was it a decision where the recipient had a right to be heard as a principle of natural justice

R v Electricity Commissioners ex parte London Electricity Joint Commission

Commissioners were given power to unify electricity providers & the applicants were to be prejudiced by the scheme. In the context of a quashing order (though this was most commonly sought – has been interpreted as applying to all JR)

Held: reviewable decision

• Atkin LJ: “any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially”

Ridge v Baldwin

Dismissal of chief constable by the local watch committee which had a power of dismissal

Held: they must dispose of their power in accordance with natural justice which he found to have been lost in wartime.

• Lord Reid: took issue with the ‘judicial’ element, as he found this should be inferred from the nature of the power & not a component itself. Wartime legislation could not evince such a duty, for example, because of the nature of the power

R v Criminal Injuries Compensation Board ex parte Lain (above)

The board argued it was exempt from JR because it was not a public body per Atkin LJ:

• It did not have legal authority because it was set up by prerogative

• It did not determine questions affecting the rights of subjects

Held: rejecting these arguments - prerogative powers justiciable in theory. Their definition as a public body established – they were one stage in the determination of questions affecting rights

• Lord Diplock: no requirement for certiorari that the body “give rise directly to any legally enforceable right or liability” but that they are “one step in the process”

• Lord Parker CJ: “the only constant limits throughout were that it was performing a public duty” – the “ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private…character has to determine matters affecting subjected provided always that it has a duty to act judicially” – “the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time, being extended to meet varying conditions”

Atkin LJ’s formula interpreted as a State organ created by statute

Non-Governmental Bodies

• Saleem Marsoof: Atkinian formula focused on the “source of power” whereas “the focus has now shifted to the nature of the power” – this has enlarged the canvas of JR but also “given rise to uncertainty as to the boundaries of JR”

Datafin

Panel on Takeovers and Merges was a London M&A regulator. It was not created by statute but was rather self-assumed – it did not have “visible means of legal support”. Statute had been enacted around it subsequently, however. Applicant challenged the Panel’s decision about their handling of a takeover bid.

Held: in principle the panel were subject to review, but the claim failed on its substance

• Public law functions of enforcing a code of conduct & regulation

• The compulsory nature of their decisions meant they had a duty to act judicially

However the remedies available would only be prospective & declaratory (unless it was a breach of natural justice). Potential exception of misreading its own rules, though large deference to body’s expertise

• Lord Donaldson: the law could fashion an “innominate” ground of review for mixed public/private bodies which would replace “formal categorisation” with review which would be “more in the round than might otherwise be the case”

• Disappointing “if the courts could not recognise the realities of executive power” & the “subtlety and sometimes complexity of the way in which it can be exerted”

NB: the court is assuming its own role here – its supervisory role over statutory bodies is logically sound as the boundaries of its power are set, however where the body is self-assumed, where are those boundaries to supervise?

• Mark Aronson: “partnership between industry and government which operated without accountability to Parliament”

R v Advertising Standards Authority ex parte The Insurance Service

• Glidewell LJ: similar characteristics to the Datafin takeover panel – emphasised that if the private body hadn’t taken on the functions they would have been performed by a statutory body

Limits

Law v National Greyhound Racing Club

Held: not reviewable

• Fox LJ: D’s regulatory functions “may affect the public or a section of it but the defendant’s powers in relation to the matters with which this case is concerned are contractual”

R v Disciplinary Committee of the Jockey Club ex parte Aga Khan

Applicant owner of racehorses had to register with Jockey Club & enter into contractual relationship. Horse disqualified – sought review

Held: rejected the argument that Law had been overtaken by Datafin – the Club did not perform governmental functions, though Lord Bingham MR conceded that ‘but for’ the club the government would have regulated. The contractual nature of the arrangement meant he had a remedy outside S.31. Left open that clubs which could not afford members a contractual remedy might be reviewed

R v Chief Rabbi

Religious bodies a public body?

Held: not reviewable

• Simon Brown J: “to attract the court’s supervisory jurisdiction there must be not merely a public but potentially a governmental interest in the decision-making power in question” – such an interest is found in the body’s “integral part of a regulatory system” which is substitutable for a governmental body

• Pannick: argues monopolistic power should always be brought within JR ambit – consensual membership to a regulator is not the same thing as power over its processes

Public Authorities & contractual decisions

R (Molinaro) v Kensington & Chelsea LBC

Applicant challenging local authority as landlord – decision not to consent to change of use of premises

Held: an abuse of power will give rise to JR

• “public law bodies should not be free to abuse their power by...