Describe and explain the public private law divide as it applies in judicial review and consider whether it makes any sense or whether it is an unnecessary concept that creates unnecessary confusion and difficulty. When considering judicial review it is important to understand its scope and how it applies. Unlike most legal issues encountered today, judicial review does not remain constant throughout the United Kingdom, as it has different legislative basis in England and Wales than it does in Northern Ireland.
The judicature act NI 1798 and order 53 RSC (NI) 1980, which received royal assent on 30th June 1978, set out the various methods for dealing with constitutional, jurisdictional and procedural matters. This in effect meant an entirely new legal body was created for administrative purposes, (the NI court service est. 18th April 1979). This act effectively created what we now consider to be judicial review. It created the high courts chancery and queens bench divisions. The queens bench division being where judicial review now commences.
The public private law divide was, in my opinion very well defined in the case of O'Reilly V Mackman1, where lord Diplock, with reference to R. S. C. Order 53 clearly outlines what constitutes a public body/entity and what does not. These are the observations and possible deductions in relation to said case. "Public bodies", and as such, entities subject to judicial review come under the following headings. Local authorities, as detailed in the cases of Prescott V Birmingham Corporation 1955 Ch2102 and Meade V Haringey London Borough Council  1 W.L. R. 6373.
This includes all public authorities such as councils, government etc. All public officers and representatives. This continues logically to include anyone considered to be doing a public duty. Or as a direct quote; "Acting in the exercise of a public duty" – lord Diplock Universities also come under the jurisdiction of judicial review as a public body; this was due to the case of R v Aston University Senate EX P Roffey 4. In the English law, order 53 Sect 31 (2) invokes the reference "having regard to".
This shows an expansion of bodies classifiable as "Public", and against whom relief is now possible. The addition of lord Diplock's emphasis upon the commencement of Judicial review under the guideline of "When it is just and convenient" leaves a large scope under which it is now possible to utilise the new system in lieu of the former system. Lord Diplock does infer his preference of section 21 of the Supreme Court act 1981, which came into force on Jan 1st 1982, stating that it "Is a higher force than order 53, 1977"
He also takes heed to point out Section 31(3) which goes further than the previous legislation in that it gives remedy to any persons with "sufficient interest". This has proven to allow an extreme range and variety of applicants to attempt leave to apply. This is, in no small part due to the removal of many technical restrictions or limitations previously in place before their repeal as a result of the act. The following extract is also taken from O'Reilly V Mackman, which in expresses a somewhat simplified terminology the crux of the black and white separation between public and private law.
"In modern times we have come to recognise two separate fields of law: one of private law, the other of public law. Private law regulates the affairs of subjects as between themselves. Public law regulates the affairs of subjects vis-i?? -vis public authorities" This although simplistic is profound throughout European legislation, in directives, regulations, treaty agreements and decisions and their applicability and direct effectiveness. The main difficulty has in many a Judges experience come about in deciding, just what an emanation of the state includes.
It can be reasonably deduced that Lord Diplock sought to clarify this not only for judicial review but in all aspects of the law. The grey areas occur in general law. This encompasses various areas such as tort, contract etc. It is not unusual for various individual members of the public to hold some form of contract with a governing body such as a local council or business serving the government such as electricity board, BBC television licence etc. So, just where has the line been drawn?
Is it where all the general public will be affected by an outcome? Or is it just a specific portion of them? It is easy to construe that public law should and does cover the general areas of constitutional law, administrative law, welfare law and international law. But even in these seemingly infallible areas grey areas can exist where the body responsible may not be able to be held accountable to judicial review. Public Private Partnerships or PPP's, privatisation of government subsidised institutions such as the NHS and rail services.
These cloud the former clear cut areas of the public private law divide. So where does it stop? I tend to agree with lord Diplock's proposed guidelines, I feel this encompasses the widest range of public industry, public bodies and public entities, without opening debate on meaningless whimsical and irrelevant subject matter from several varied claims made upon flimsy ground. There are various reasons that the concept of judicial review is necessary. It has various safe guards which the common law does not, although it does have its downfalls.
In the common law plaintiffs and defendants have the right to appeal. However this must have a statutory basis, no such requirement exists for judicial review. The reasons set out in the latter portion of the assignment detail the requirements. The appeals procedure has the opportunity and the ability to assess merits of a case, leniency for deeds of reconciliation since the offence. Consideration of individual circumstances relative to the sentence received. Judicial review therefore has a much more pragmatic approach.
It is a side of the judiciary which deals with cases a lot quicker and more efficiently, whilst it's various safeguards provide the basis to allow this expedient approach whilst still providing a fair review of the cases at hand. The various safeguards which control application to judicial review help limit the number of cases reviewed in this manner. All applicants must be granted leave to apply from the high court before the commencement of judicial review. There is a time limit imposed of three months for application in Northern Ireland.
On the subject of leave for apply lord Diplock highlighted the concepts importance in the retention of an effective court system; "Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived. " A lesser recognised but also valuable safeguard in judicial review application is the order for discovery. In which a court….