JUDICIAL REVIEW AND PUBLIC LAW: CHALLENGING THE PRECONCEPTIONS OF A TROUBLED TAXONOMY.

• Date: 01 December 2017
• Author: Thomson, Stephen

Much has been written on whether public/private distinctions should be made by judicial review. Little explored is the related but distinct question of whether judicial review should itself be classed as a branch of public law. This important issue of taxonomy affects the limits, contours and methodology of review, yet is often taken for granted. This article argues that the law and scholarship on judicial review is infused with preconceptions that often prove inconsistent or incoherent, and which may even hinder the potential of judicial review to protect individual rights by taxonomically binding it to public law in a way that is neither an epistemological nor functional imperative. It argues that by loosening its association with public law, judicial review can begin to be liberated from these preconceptions, with renewed focus on deeper questions of principle and purpose.

CONTENTS I Introduction II The Indeterminacy of 'Publicness' III The Fluidity of 'judicial Review' IV Is the Classification of Judicial Review as a Branch of Public Law an Epistemological Imperative? V Is the Classification of Judicial Review as a Branch of Public Law a Functional Imperative? VI Should the Association of Judicial Review with Public Law Be Discarded VII Conclusion I INTRODUCTION

The so-called public/private divide features throughout the law and scholarship on judicial review, cleaving public and private bodies, functions, interests, remedies and law. (1) It has been asked whether there is or should be a public/private distinction made by judicial review, (2) but there has scarcely been focus on whether judicial review should itself be classed as a branch or component of public law. (3) These questions are related but distinct, the issue of classification having largely been taken for granted. This article examines the incongruences of, and the difficulties caused by, the categorisation of judicial review as a branch of public law. It argues that its classification as such is neither epistemologically nor functionally necessary, and that by loosening its association with public law, judicial review can begin to be liberated from a number of preconceptions, with renewed focus on deeper questions of principle and purpose.

The classification, organisation and treatment of judicial review as a branch of public law is interconnected with the way in which review is conceived, along with its limits, contours and methodology. If judicial review is regarded as a branch of public law, it might seem doctrinally awkward for a reviewing court to supervise private bodies, regulate private interests or award private law remedies. Conversely, if review is not classed as a branch of public law, its methodology may be at least partly liberated from the perceived need to draw public/private distinctions, with judicial review regulating only, or principally, the 'public' side of those divides.

Public/private distinctions have famously caused difficulties in judicial review: courts have struggled with when to characterise a body as a public body, a function as a public function, and so on, in order to measure susceptibility to review. (4) The source of a body's powers as statutory or contractual, and the character of a body as public or private, has been relevant for the determination of reviewability in Australia. (5) The courts in New Zealand have also been more reluctant to permit judicial review on the full range of grounds when contractual powers are at issue. (6) Even in Scotland, where the competency of an application for review 'does not depend upon any distinction between public law and private law', (7) and where 'the supervisory jurisdiction has always been capable of being invoked to review decisions of purely private as well as public bodies', (8) contractual rights and obligations have been held 'not as such amenable to judicial review'. (9) In apparent defiance of its doctrinal foundations, (10) there remains in Scotland a tendency to characterise judicial review as a branch of public law. (11)

There is often an awkwardness in fastening these distinctions to consistent principles, and a resultant lack of certainty in knowing exactly who and what is reviewable, when and (perhaps more crucially) why. The distinctions can also become self-reinforcing: precedents are invoked by judges to show that this is a public body, or that is a public function, and so an apparent consistency builds up in the law. However, as this does not always reflect the original principles on which processes or remedies were once built, such an appearance of consistency is perhaps misleading: for example, the remedies of certiorari, mandamus and prohibition (now, in England and Wales, quashing orders, mandatory orders and prohibiting orders) (12) are regarded as 'public law remedies', (13) though, as Dawn Oliver has shown, they have not always been conceived as such and, historically, they to some extent traversed the putative public/private divide. (14) Perhaps part of the difficulty is that the classification and conceptualisation of the prerogative orders or constitutional writs (15) as public law remedies has distracted from deeper questions of principle in judicial review. (16)

The classification of judicial review as a branch of public law is often used as a basis on which other distinctions are made, and, potentially, unnecessarily made. For example, though there is common law authority that one should generally have resort to other remedies (including private law remedies) where these are available, prior to or instead of applying for judicial review, (17) this does not necessarily require a public/private distinction to be drawn. Rather than identifying a relationship as private law in nature, and on that basis excluding or deprioritising remedies in judicial review, it is possible to justify a prioritisation of other remedies, such as those in contract or tort, on alternative principles. One could be that, as a matter of policy, it is preferable to require contractual or other 'private law' rights to be exercised in order to mitigate the effects of review on public administration, as the resulting judicial decision is typically not catholic, but directed specifically at the legal relationship between the parties in dispute. This might generate fewer rights for a larger class of persons in the 'public' domain. Alternatively, contractual obligations owed by a public body might, as a matter of policy, be thought best enforced through contractual remedies from a rule of law and economic perspective: by treating a public contractor like any private contractor, private persons are not disincentivised from contracting with public bodies on the basis that they might be treated differently by the courts. (18) The landscape of judicial review need not be cast on public/private contours.

The reluctance to admit of judicial review of contractual obligations implies the segregation of a class of private law cases apparently considered inappropriate for judicial review. Institutional factors may, as Mark Elliott has argued, feature in the determination of amenability to review (19)--it might, for example, be regarded as inappropriate that non-statutory trustees, or company directors, or sports referees, be subject to judicial review, whereas it might be thought appropriate for emanations of the Crown acting in a prerogative capacity to be subject to review. As Elliot rightly stated, institutional factors would be indicative rather than determinative of amenability to review (20)--it might be felt that when a government department is in breach of contract, it should be contract law, and not judicial review, that determines liability. This underlies the thrust of the Datafin principle that the nature of the power exercised, rather than its source, is determinative of susceptibility to review.

However, the nature of the power is still assessed through the lens of a particular worldview: one premised on traditional conceptions of the public/private divide. When the nature of the power is contractual, the instinct of the courts is to recoil from judicial review. Why, after all, should public law deal with private law obligations? Why should public law standards be imposed on bodies acting in an ostensibly private law capacity? However, when the precariousness of some of the underlying concepts is exposed, it is evident that the existing approach to judicial review is infused with predispositions and premises which do not always prove consistent or coherent. The multifaceted realities of power, and the complex nature of governance, reveal the fragility and inadequacy of traditional public/private distinctions--and the classification of judicial review as a branch of public law arguably perpetuates the clumsiness of review methodology in attempting to grapple with these realities.

II THE INDETERMINACY OF 'PUBLICNESS'

Judicial review's uncomfortable encounters with public/private distinctions are well publicised. This has famously been seen in relation to the categorisation of bodies as public or private, with a shift in judicial methodology to whether the body's functions are public or private in nature, an approach broadly followed in Australia. (21) This is essentially in recognition of the fact that public bodies can have private law obligations (such as in contract or tort), and that private bodies can have public law obligations (such as when a private body exercises de facto regulatory functions). It has also been seen in relation to standing, and whether the applicant is required to have a private interest in the matter to which the application relates, or whether an applicant can make an application in the public interest. (22) The trend is one in which the courts adapt the law as the boundary between the public and the private is tested, developed and refashioned, but not always with confidence in the principles and concepts that this...