The Nature of Power as Public in English Judicial Review

Abstract

It is generally accepted amongst English jurists that power may be characterised as either public or private, and that judicial review is available only with respect to the exercise of public power. Prior to the decision of the Court of Appeal in R v Datafin, ex p Panel on Take-overs and Mergers, the source of a power (whether in statute or the prerogative) was determinative of whether that power was public and, therefore, potentially subject to judicial review in England. Following the decision in Datafin, however, regard may be had to the nature of a power, considered independently of the power’s source, to determine whether the power is public in the relevant sense. Consequently, the operation of judicial review is no longer limited to power that derives from statute or the prerogative. Furthermore, some decisions since Datafin have even gone so far as to suggest that the “nature of power” approach to determining whether power is public for the purposes of judicial review does not complement the “source of the power” approach but, rather, supplants it. The result, at least according to these decisions, is that power may not necessarily be public even if it derives from statute

The purpose of this article is to examine whether the specific tests relied on by the English courts positively to determine whether power is public by virtue of its nature, rather than its source, can be applied coherently in practice This article is divided into two main parts. In the first part, it examines critically the two principal tests that have been relied on by the English courts to determine whether power is public by virtue of its nature for the purposes of judicial review. These tests will be referred to here as respectively the “but-for” test and the “statutory underpinning” test. The second part of the article will consider more broadly the jurisprudence surrounding the Human Rights Act 1998, and the direct effect of Community directives. The notion of that which is “public” plays a significant role in each area. The relevant jurisprudence from each area will be examined to ascertain whether it might be of assistance in formulating a coherent test to determine whether power is public, by virtue of its nature, for the purposes of domestic English judicial review.

The article will conclude that the difficulties inhering in those tests currently relied on by the courts, not only in the context of English judicial review, but also in respect of the Human Rights Act and the direct effect of Community Directives, are serious and entrenched.

Keywords: Judicial Review, Public Power, Private Power, Source of Power

JEL Classification: K23