The Public/Private Divide and Scope of Judicial Review

An individual aggrieved by a governmental decision may have two choices: sue the government for damages, or seek judicial review. Some of the most difficult questions in administrative law arise on the border between a civil suit (private law) and judicial review (public law).
Over at the UK Human Rights blog, David Hart Q.C. has an excellent summary of a recent English High Court case, A. v. Chief Constable of B Constabulary, [2012] EWHC 2141, where the police refused to award a towing sub-contract to an individual who failed a background check. So, is this a contractual decision, for which the individual can seek private law remedies, or a decision subject to judicial review? Kenneth Parker J. concluded that it was a decision and thus that the police were subject to a public law duty of fairness. A quite similar conclusion, then, to that of Finlay Geoghegan J. in the Treasury Holdings case I discussed yesterday.

Readers who find the topic interesting would do well to consult an excellent paper by Dr. Mark Elliott (Cambridge) which recently appeared in the New Zealand Law Review. Here is the abstract:

As judicial review has expanded beyond its heartland — namely, control of the exercise by government of statutory powers — its perimeter has become increasingly uncertain. Yet, as techniques of governance evolve — thanks, among other developments, to contractualisation, corporatisation and reliance upon commercial and voluntary entities to provide public services — delineating the extent to which judicial review applies, and should apply, in atypical settings is an increasingly pressing challenge. This article argues that the scope of judicial review cannot be delimited in principled or consistent terms without first confronting the logically prior question: what is judicial review for? It is argued that the normative foundation of judicial review consists in three interlocking factors — respect for legality and the rule of law, the need to control government, and the public interest in good governance — and that, in combination, these factors can be used to determine the appropriate province of judicial review. The analysis developed in parts I and II of the paper is applied, in part III, to several problem areas in which courts have notably struggled to adopt (or at least articulate) a coherent approach when presented with novel questions about the legitimate reach of judicial review.

There was also some discussion of the public/private distinction by Phelan J. of the Federal Court of Canada in his decision this week in Attawapiskat First Nation v. Canada, 2012 FC 948.

This content has been updated on June 11, 2014 at 09:47.