THE PROBLEM OF THE PROVINCE OF JUDICIAL REVIEW
[2.03] The first point to note about judicial review is that the question whether to use the judicial review procedure will not give rise to difficulty in the clear majority of cases.
Judicial review has been described as concerned with â€?public law issues and not private disputes involving no element of public law’.[185] Public law issues, in turn, are nearly always synonymous with the exercise or non-exercise of statutory power, or the failure by a decision-maker to perform a public duty that is imposed upon it by statute[186] (public law issues may more exceptionally concern exercises of the royal prerogative[187]). Where it is self-evident that a dispute is not governed by private law, and statute does not provide for an effective alternative remedy, an application for judicial review will thus be appropriate. The issues for the court will at that stage include whether the applicant has satisfied each of the procedural requirements that govern the making of an application,[188] whether the applicant has made out all or any of the grounds for review listed in their Order 53 statement,[189] and whether the remedy sought should be granted.[190][2.04] The question whether to use the judicial review procedure can, however, become more complex in two related ways. The first is where statutory underpinning for a decision, act, or failure to act is absent or indirect. Under these circumstances, the challenge for the courts is how to delimit the reach of public law in the face of the decision-making processes of, for instance, privatised utilities or private companies that have an historical and exclusive authority to grant licences for certain economic activiÂties. Judicial review previously fastened upon a â€?source of power’ test that identified public law issues solely with decisions, acts, and failures to act in respect of statutory powers and duties[191] (the test thereby served to exclude from judicial review private law decisions taken within the framework of, most obviously, contractual relations).
However, while the source of power test remains sufficient for most purposes, the courts have had to look beyond it given the argument that public law can be engaged by, among other things, employment law decisions in the public sector context and the decisions of a wide range of private bodies that now perform public functions in the place of the State (through contracting out, privatisation, etc).[192] The courts have thus had to develop a range of tests that embrace the realities of public decision-making in the modern polity, where the power of decision can be of historical or contemporary origin and have a statutory or a non-statutory basis.[2.05] The second complication is procedural and concerns the implications of making an application for judicial review when it transpires that the issue is not one of public law or where the matter is not exclusively one of public law. This difficulty has its origins in O’Reilly v Mackman,[193] where the House of Lords emphasised the importance of a procedural public/private divide under which public law rights can be vindicated only by way of Order 53 proceedings, and private law rights by way of ordinary proÂceedings (further procedural arguments may then arise independently of the public/ private divide, that is, where a matter is one of public law but where statute provides for an alternative remedy by way of, for instance, an appeal on a point of law). Although the practical implications of O’Reilly have been lessened to an extent by an â€?antiÂtechnicality’ provision that allows some proceedings begun by way of judicial review to continue as if begun by way of writ[194] (see [2.32])—the courts also accept that judicial review may be suited to the resolution of disputes that raise mixed issues of public law and private law[195]—the â€?procedural exclusivity’ rule is not without continuing relevance. Hence there have been applications in which it has been held that the applicant’s Order 53 statement did not in any event lend itself to continuation under the anti-technicality provision;[196] and there have been other cases in which the courts have emphasised that judicial review is a discretionary remedy and that abuse of process may lead the court in the exercise of its discretion to refuse a remedy or to impose sanctions in costs.[197] There is, in addition, the converse difficulty of proceeding by way of writ when judicial review should have been used, as applicants here may face the particular problem of meeting the shorter time-limit prescribed for the making of an application (â€?promptly and in any event within three months’[198]).