Public Bodies
Only public bodies, not private bodies, are amenable to judicial review.;
Some institutions are clearly public bodies: Secretaries of State, Local Councils, Police forces
Other cases are not obvious
R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815
The City Takeover Panel is an unusual body, it was not set up by the government.
It administered a code of conduct regulating how takeovers and mergers are to be conducted.
A company cannot trade on the London Stock Exchange without complying with the city panel
Therefore, if this iss breached, the Takeover Panel can sanction the offender.
The Code was part of the machinery for regulating a major national institution - the stock exchange.
It was supported by the Bank of England (which makes several appointments to its board).
If The Panel did not exist, the government would have to create a similar body (as exists in other countries).
It was referred to in legislation, which was built around it.
The test
Would the government have legislated to regulate the field had this regulation not existed.
The Court of Appeal’s answer is – yes.
R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909
The Jockey Club regulates horse racing. Membership essential for racing.
The disciplinary committee - fining trainer for a horse failing a drug test.
Court decided it was not a public body.
The Jockey Club has “not been woven into any system of governmental control of horse racing, perhaps because it has
itself controlled horse racing so successfully that there has been no need for any such governmental system and such
does not exist”.
Sporting associations
But isn’t that exactly the Datafin test – the government would have regulated had this voluntary regulation not existed.
So should not the court have recognised it as a public body?
Similar decisions regarding other sporting bodies (FA, greyhound racing), apparent contradiction with Datafin perhaps
will only be settled by SC.
One indicator the Court relies on in Aga Khan is the existence of a contract between the parties is very strong as an
indicator that the matter is only a private law dispute. (Also in R (West) v Lloyd’s of London [2004] EWCA CIV 506).
But is this a sufficient explanation for the decision? Of course the body is not incorporated by statute. That would be a
core example of a public body. The question arises as it is set up privately.
Religious Bodies
R v Chief Rabbi Ex p. Wachmann [1992] 1 WLR 1036
No JR as not regulation which but for its existence gov’t would regulate (except the established Church).
Other public/ private distinctions
S. 6, Human Rights Act
EU Directives
Will be studied separately.
An issue of public law
When public bodies make contracts, torts or have property disputes, they fall within ordinary ‘private’ law rules. Claims
for JR may not be used instead.
When a claim is based on public law a litigant cannot bring civil suit to circumvent that.
, The Civil Procedure Rules Part 54 protect public authorities from groundless or delayed attacks by its requirements, so it
would be wrong to allow evasion of its limits.
O’Reilly v Mackman [1983] 2 AC 237
However
Public Law matters might arise indirectly in other types of cases:
For example:
As a challenge to the legality of regulations by a defendant in a criminal prosecution, arguing they are ultra vires.
Boddington v British Transport Police [1998] UKHL 13.
In such a case of course there is no need for the court’s permission to raise the argument.
Civil procedure rules, part 54
54.4 The court’s permission to proceed is required in a claim for judicial review...
54.5 (1) The claim form must be filed –
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose.
…..
Reviewability
Some matters regarded as non-justiciable
Errors of fact;
Policy see:
GCHQ case
R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240
Political questions – that does not mean the legal aspect is not reviewable – Cherry case.
Legality not merit
Example: government needs to build a new runway.If the government chooses Heathrow, you could not go to court and
say that Gatwick would have been a better choice.
That is a policy decision for government not the courts to take.
Laws LJ, ‘does not ask itself the question, “is this decision right or wrong?” Judicial review has nothing to do with “which
view is the better one”.
R v Somerset County Council, ex p Fewings [1995] 1 All ER 513
But the courts review the legality:
So the Minister making the decision would have to
give a fair hearing to interested parties,
i.e. neighbours, the airports, airlines, local authorities.
Would have to avoid legally irrelevant considerations
i.e. would choosing Gatwick make it easier for him to go to his holiday home in France?
Not use the power to choose for an improper purpose
i.e. to boost the government’s popularity in a particular constituency)
Comply with any specific legal requirements,
i.e. to consider the environmental impact;
Have understood the law correctly without error (Anisminic).
Standing - Locus standi
Who can bring an application for judicial review?
Senior Courts Act 1981, s 31 (3)
Only public bodies, not private bodies, are amenable to judicial review.;
Some institutions are clearly public bodies: Secretaries of State, Local Councils, Police forces
Other cases are not obvious
R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815
The City Takeover Panel is an unusual body, it was not set up by the government.
It administered a code of conduct regulating how takeovers and mergers are to be conducted.
A company cannot trade on the London Stock Exchange without complying with the city panel
Therefore, if this iss breached, the Takeover Panel can sanction the offender.
The Code was part of the machinery for regulating a major national institution - the stock exchange.
It was supported by the Bank of England (which makes several appointments to its board).
If The Panel did not exist, the government would have to create a similar body (as exists in other countries).
It was referred to in legislation, which was built around it.
The test
Would the government have legislated to regulate the field had this regulation not existed.
The Court of Appeal’s answer is – yes.
R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909
The Jockey Club regulates horse racing. Membership essential for racing.
The disciplinary committee - fining trainer for a horse failing a drug test.
Court decided it was not a public body.
The Jockey Club has “not been woven into any system of governmental control of horse racing, perhaps because it has
itself controlled horse racing so successfully that there has been no need for any such governmental system and such
does not exist”.
Sporting associations
But isn’t that exactly the Datafin test – the government would have regulated had this voluntary regulation not existed.
So should not the court have recognised it as a public body?
Similar decisions regarding other sporting bodies (FA, greyhound racing), apparent contradiction with Datafin perhaps
will only be settled by SC.
One indicator the Court relies on in Aga Khan is the existence of a contract between the parties is very strong as an
indicator that the matter is only a private law dispute. (Also in R (West) v Lloyd’s of London [2004] EWCA CIV 506).
But is this a sufficient explanation for the decision? Of course the body is not incorporated by statute. That would be a
core example of a public body. The question arises as it is set up privately.
Religious Bodies
R v Chief Rabbi Ex p. Wachmann [1992] 1 WLR 1036
No JR as not regulation which but for its existence gov’t would regulate (except the established Church).
Other public/ private distinctions
S. 6, Human Rights Act
EU Directives
Will be studied separately.
An issue of public law
When public bodies make contracts, torts or have property disputes, they fall within ordinary ‘private’ law rules. Claims
for JR may not be used instead.
When a claim is based on public law a litigant cannot bring civil suit to circumvent that.
, The Civil Procedure Rules Part 54 protect public authorities from groundless or delayed attacks by its requirements, so it
would be wrong to allow evasion of its limits.
O’Reilly v Mackman [1983] 2 AC 237
However
Public Law matters might arise indirectly in other types of cases:
For example:
As a challenge to the legality of regulations by a defendant in a criminal prosecution, arguing they are ultra vires.
Boddington v British Transport Police [1998] UKHL 13.
In such a case of course there is no need for the court’s permission to raise the argument.
Civil procedure rules, part 54
54.4 The court’s permission to proceed is required in a claim for judicial review...
54.5 (1) The claim form must be filed –
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose.
…..
Reviewability
Some matters regarded as non-justiciable
Errors of fact;
Policy see:
GCHQ case
R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240
Political questions – that does not mean the legal aspect is not reviewable – Cherry case.
Legality not merit
Example: government needs to build a new runway.If the government chooses Heathrow, you could not go to court and
say that Gatwick would have been a better choice.
That is a policy decision for government not the courts to take.
Laws LJ, ‘does not ask itself the question, “is this decision right or wrong?” Judicial review has nothing to do with “which
view is the better one”.
R v Somerset County Council, ex p Fewings [1995] 1 All ER 513
But the courts review the legality:
So the Minister making the decision would have to
give a fair hearing to interested parties,
i.e. neighbours, the airports, airlines, local authorities.
Would have to avoid legally irrelevant considerations
i.e. would choosing Gatwick make it easier for him to go to his holiday home in France?
Not use the power to choose for an improper purpose
i.e. to boost the government’s popularity in a particular constituency)
Comply with any specific legal requirements,
i.e. to consider the environmental impact;
Have understood the law correctly without error (Anisminic).
Standing - Locus standi
Who can bring an application for judicial review?
Senior Courts Act 1981, s 31 (3)
