AVAILABILITY OF JUDICIAL REVIEW
A public authority is an authority that performs public functions; they are creatures of Statute and derive its authority from statute. The source of its power being that of statute distinguishes public from private. Judicial Review is the jurisdiction of the superior courts to review laws, decisions, acts and omissions of public authorities in order to ensure that they act within their given powers. The judges exercise a supervisory power within the four corners of the Statute. NOTE: Public authorities exercise discretionary powers as a process of reasonableness and this discretion must be within the power given to them by the prescribed statute. If a public authority acts outside of the statute it is deemed Ultra Vires or unconstitutional. However, the definition has been extended by case law to include some bodies which derive their authority from a source other than Parliament. This is due to a shift in the focus of the courts from looking at the source of power to the nature of the power. In GCHQ case, we see the boundaries of Judicial Review of public bodies pushed. Here the body under review derived its authority not from statute but from prerogative power. Lord Denning said that such a body should not be reviewed by the courts. However, Lord Diplock held that there was a public element in the bodies function and there is no reason why the body should not be reviewable by the court. NOTE: Lord Diplock set out three criteria s for a public body to qualify for judicial review. Illegality in the performance of its functions; Irrationality in the reasoning behind its decision; and Procedural impropriety
Exparte Datafin case went the furthest on the issue of a body subject to Judicial Review. The case involved a private company run by private agencies which can be viewed as de facto public authorities for the purpose of Judicial Review. In William C.O. v Ag of Barbados, emphasis was placed on both the source of the panel‘s power and the nature of the power. In Griffith s v Barbados Cricket Authority (BCA), it was held that the BCA was reviewable based on their substantial powers that could affect the lives of cricketers as well as the fact that it governed a sport of 1
paramount importance to the citizens of the countr y. (Cultural) The courts in their discretion took the importance of cricket into account in making their decision thus, giving themselves a wider discretion. However, the courts discretion should be exercised based on objective criteria. Each case is to be considered on its own merits, social context and it is the factors that are of particular importance to that case that will be taken into account whether it would be considered in another case. NOTE: The source of a public bodies‘ power has not been r eplaced as a criterion for a public body. It has been joined by the nature of the power exercised by the body and speaking to bodies that on the face appear to be private bodies. Thus a private body may be a public body for the purpose of Judicial Review but a public body by contrast can never be a private body.
CLASSES OF BODIES: Public Bodies – deriving its power form statute; Private Bodies regarded as public bodies for the purpose of Judicial Review – deriving its power from a source other than statute but having some public element in its function; and Private bodies – deriving its power from prerogative or private charter. Administrative law is evolutionary, that is constantly changing. NOTE: Datafin extended not over rule GCHQ (Locus Standi). Wade acknowledges that the boundaries are not closed; the categories of bodies that can be subject to judicial review...
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