ABSTRACT
Judicial review is only available to test the lawfulness of decisions 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 lie in private law, not public law, proceedings. In determining whether or not the body whose decision is being challenged on an application for judicial review is a public as opposed to private body, the court will look at its functions. 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. National public agencies have been a feature of administration since the Reform Act of 1832. The Poor Law Commissioners established in 1834, for whom there was no responsible Minister in Parliament (until 1847) are an early example of such an agency. The post-Second World War nationalisation programmes of the Labour government between 1945 and 1951 and the expansion of welfare provision, both then and subsequently, resulted in numerous public bodies being established which were not government bodies, nor were they part of local government. Examples of such bodies include the British Broadcasting Authority, Legal Aid Board (now the Legal Services Commission), Atomic Energy Authority and British Airports Authority. It was estimated that by 1991 there were some 1,444 public bodies which were not related to government departments.17 In 1979, the incoming Conservative government was firmly committed to privatisation. British Gas, British Airways, British Rail, British Telecom, the water supply industry and electricity industry were all privatised.18 The drive towards privatisation and reduced state holdings in many other enterprises19 has not, however, reduced the number of public bodies. Parallelling the privatisation movement has been the growth in standard setting and regulatory bodies designed to ensure appropriate accountability of providers to consumers. The Police Complaints Authority, Lord Chancellor’s Advisory Committee on Legal Education and Conduct, Higher Education Funding Council, and Human Fertilisation and Embryology Authority are all examples of bodies created under statute.20 Furthermore, there have been a number of regulatory bodies established on a voluntary basis. The Press Complaints Commission, City Panel on Takeovers and Mergers, Advertising Standards Authority, Jockey Club and Football Association are all examples of such bodies. One question which arises is how the courts determine whether a body – howsoever established – is a public body and thus amenable to judicial review of its decisions. The City Panel on Takeovers and Mergers provided an opportunity for judicial analysis of public and private bodies.
