Administrative Law

Topics: Law, Human rights, Scottish public bodies Pages: 6 (1811 words) Published: August 28, 2013
Introduction
The essay is looking at what public bodies are for purposes of judicial review and why only such bodies are amenable to judicial review. In order to deal with the subject matter it is important to look at the definition of public bodies. Definition

Under section 6(1) and (3) Human rights Act1 public authorities includes courts tribunals and anybody of whose function are functions of public nature. It can also be said that what constitutes public body is not whether the body is owned by the state or in private ownership now days many functions for which the state is responsible are in fact undertaken by bodies that are privately owned. It is the court to decide on an application for judicial review, whether or not the body in question is a public body for purposes of judicial review.2

However parliament or persons exercising functions in connection with proceeding in parliament is not public authority except the house of hordes in king land in its judicial capacity.3

The case of R. V. City Panel on Takeover and Mergers ex parte Data Fin ltd, 4 the court ruled that although the city panel had no statutory or other legal source of power, it was never the less subject to judicial review on the basis that if the panel did not exist, its function would have been undertaken by a government department.

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By contrast in R. V. Disciplinary committee of the Jockey Club ex parte Aga Khan5, the Jockey Club disqualified a winning horse from a race for failing a dope case. On an application for judicial review of the decision, the court ruled that the relationship between the race horse owners and the club, and the powers of the club, derived from agreement between the parties. Accordingly it was a matter of private law. 1. Human Rights Act 1998

2. Hilaire Barnett [2011]. Understanding Public Law. p189 3. John Alder [2009]. Constitutional and Administrative Law. p.398. 4. [1987]. QB 815
5. [1993] 1 WLR 909
Judicial review is only available to test the lawfullness of a decision made by public bodies. If judicial review is applied for, and the court rules that the body whose decision is being challenged is a private body, then the remedy of the aggrieved individual will lay in private law, not public law proceedings. In determine whether or not the body whose decision is being challenged on an application for judicial review is a public as opposite to private law the court will look at its function. The test is not whether or not the authority is a government body as such but, rather whether it is a body exercising powers analogous to those of government bodies. The same principle will be applied when a matter is regulated by contract between parties – the matter is one of private and not public law. There is a fine distinction to be drawn here. The regulation of a private school for example has been held to be a matter of private law whereas the regulation of city technical colleges, no-fee paying publicly funded institutions, is a matter of public law. However where a pupil attends a private school under a publicly funded assisted places scheme, but the school falls within the jurisdiction of judicial review in relation to the school’s decision, in particular the decision to expel a pupil6

In the case of R. V. Governors of Haberdasher’s Aske’s Hatcham College Trust, ex part7 in this case the court noted that decisions made by ‘local education authorities concerning admission to public sector…are amenable to judicial review. This is because those decisions are taken by bodies, the source of power is statutory, and the decisions are made in the exercise of public law duties or functions.’ There two kinds of public authority firstly there are bodies such as central and local government and the police which are...

Bibliography: Hilaire, B. (2011). Understanding Public Law. New York: Rutledge Cavendish.
Hilaire, B. (2011). Constitutional and Administrative Law. (8th ed). New York: Routledge.
John, A. (2009). Constitutional and Administrative Law. (7th ed). New York: Palgrave Macmillan
Richard, G. Eimear, S. And Rhona, S. (2001).Constitutiona and Administrative Law.(9th ed).London: Sweet and Maxwell.
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