Whither a Public Law Element in the Absence of Statute?
The existence of statutory underpinnings is not the only basis for locating judicial review. It is important to note that even in the absence of a statutory underpinning for the exercise of a power, judicial review may ensue if the exercise of the power has a significant impact on the public so that it is in the public’s interest that the courts supervise such power.
The courts have considered the nature of the power exercised and the impact of that power. In the context of the Commonwealth Caribbean, this is a powerful rationale for intervention since many of the statutory and privatized bodies perform functions which have significant impact on the lives of the public, not least because, given the sizes of the various populations, there is often a monopoly of the particular industry.It is only where the power to dismiss resides solely in contract, and where a private remedy exists, that the court will not grant judicial review. For example, in McClaren v Home Office, Woolf LJ noted that �[a]s long as the “tribunal” or other body has a sufficient public law element which it almost invariably will if the employer is the Crown and it is not domestic or, wholly informal, its proceedings and determination can be an appropriate subject for judicial review.’[298]
Further, in Becker v Duggan, the court said:
In ascertaining whether or not there is the necessary public law element present, two approaches have emerged, the first being to identify the source of the power exercised and the second emerging in later cases is to focus on the nature of the power. Until the English case of Reg. v Take-over Panel exp. Datafin Plc. [1987] Q.B. 815 the availability of the remedy depended upon the source of the power being either of a statutory nature or of being derived from the common law. Clearly excluded were decision-making powers based on a contract or consent between the decision maker and the person affected. This excluded the affairs of clubs and private associations from the purview of judicial review...Where the duty being carried out by a decision making authority, as occurs in this case, is of a nature which might ordinarily be seen as coming within the public domain, that decision can only be excluded from the reach of the jurisdiction in judicial review if it can be shown that it solely and exclusively derived from an individual contract made in private law.[299]
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