Last night I gave a work-in-progress talk at the Centre for Public Law, on the topic of the boundaries of judicial review of administrative action. You can listen to my presentation above, or click on this link. Here is the abstract:
The purpose of this paper is to suggest that the boundaries of judicial review of administrative action have been shaped by administrative law values. Difficult issues arise at the boundaries of administrative law. For instance, the boundaries of judicial review of non-statutory powers are uncertain. The same is true of judicial review of the exercise of contractual powers by statutory bodies, or of statutory functions that have been ‘contracted out’ to private entities. It has been said that what must be identified to distinguish private matters from public matters “is a feature or a combination of features which impose a public character or stamp on the act” (Poplar Housing and Regeneration Community Association Ltd v Donoghue  QB 48, at para 65, per Lord Woolf CJ). What is needed, however, is some guidance as to what “public” might mean in this context. My thesis is that administrative law values can provide useful illumination as to the boundaries of judicial review of administrative action. I will endeavour to support this thesis by building on my previous work on values: “Administrative Law: A Values-Based Approach” in Bell, Elliott, Varuhas and Murray eds., Public Law Adjudication in Common Law Systems: Process and Substance (Hart, 2016) and “Administrative Law: Characteristics, Legitimacy, Unity”, forthcoming in Elliott, Varuhas and Stark eds., The Unity of Public Law? Theoretical and Comparative Perspectives (Hart, 2018).
I have not yet posted the paper (which I refer to occasionally in my presentation) to SSRN, because I will be making some changes, prompted in part by the excellent comments I received from participants at the Seminar. If you would like a copy, please contact me and I will send one along. I would certainly be very happy to receive further comments.