Acting as Legal Advisor to the Director

In this scenario, we are acting as advisors to Mark, whom is the Director of the Anti-Gambling League (the League). This body has come to seek legal advice concerning the need to make an application of Judicial Review. The League would like to oppose against the decision made by the UK Lottery Commission (ULC) in granting a license to Fat Cats plc. The reason being is that the Director of the League firmly believes that the decision was made on the basis of the fact that the members of the ULC are in favour and want to encourage the promotion of gambling.

The wishes of the Fat Cats plc are in conflict with those of the League. As advisors we firstly need to establish what the purpose of judicial reviews is, and see if its purpose relates to the wishes of the League. "Judicial review is essentially the courts control of the administrative actions of the public bodies. " Judicial Review represents the means by which the courts control the exercise of governmental power. Governmental departments, local authorities, tribunals and agencies exercising power that is governmental in nature, must exercise their power in a lawful manner.

This can be considered as another way of providing and keeping a control over people or bodies whose actions and decisions affect the public. The courts review the actions of administrative bodies and investigate any illegality, irrationality or impropriety in their actions/ decisions- more reference would be made later on. They scrutinise the actions undertaken by the public bodies, as it is to their discretion that if they find any recognisable public wrongdoing. If there has been any form of public wrongdoing, the courts have the power to enforce remedies.

If the League wish to apply for Judicial Review, they must therefore establish that the respondents to the case as being a 'public body'. As the availability of judicial review, is seen as a way of challenging the decision of a public law body. The term 'public body' refers to an authority which exercise public law functions, especially those that are public- based powers i. e. statutory source of powers. The way in which it challenges these powers is through the lawfulness of a decision made by the public bodies.

Public bodies differ from private bodies, because the actions of the public bodies not only affect the public at large, but also enact the essence of the executive, an example of a public body is a local authority or anything as mentioned above of being governmental in nature. However, recognition must be made to bodies that do not fall within the 'public body' category- can judicial review be made available? In this respect, it can be said that a body that is wholly private despite exercising a wide range of powers, including those of public, can therefore be said not to be susceptible to judicial review.

In the case R v Disciplinary Committee of the Jockey Club ex. parte Aga Khan [1993] 2 All ER 853, it was held that this was a private body as it exercised powers based on contractual obligations between the owner and the Club. The major judicial review doctrine of ultra vires (without power) is based on the idea of bodies keeping within powers- intra vires; they have been confined to. As acting outside the jurisdiction of these powers is considered to be a breach of law.

It can therefore be said that judicial review is concerned with the legality of a decision, and is not with the merits of that particular decision. Judicial review can be considered not to be an appeal of a decision, but it is merely a review of the manner in which the decision is made. It can therefore be said that the decision of the ULC is amenable to judicial review. In this respect, the concept of the decision made by ULC to grant the licence to Fat Cats plc must take into account whether the League have sufficient interest in the subject matter.

Under s. 4(4) of the UK Lottery Act, which states: " ULC shall consult with such persons as it considers appropriate before granting a licence. " It is advisable to suggest to the League to bring to the attention of the courts: lack of concern shown by the ULC to consider the League in consultation before decision for the granting of the licence. The basis of review lies in s. 31 of the Supreme Court Act 1981, and the attendant Order 53 of the Rules of the Supreme Court.