1. What is public and regulatory law?
Broadly speaking, it is the law relating to the exercise by public bodies of functions of a public nature, and the rights of persons affected by the exercise of those functions. It therefore covers many tribunal and other quasi-judicial proceedings, judicial review, human rights and other areas such as freedom of information and data protection.
2. What is a public body ?
Central Government departments, local authorities, statutory tribunals, National Health Service bodies, state sector schools and colleges and the police are obvious examples. In other cases, bodies which are private in nature but which carry out public functions may also (sometimes surprisingly) be deemed to be public bodies. This may depend on the particular type of legal action or redress that is being considered. For example, a body which is judicially reviewable may not necessarily be bound to comply with the Freedom of Information Act.
3. Are all the clients of this BWB Department “public bodies”?
No, some are clearly private bodies such as charitable membership organisations. However, many such organisations are, in practice, required to comply with the same standards of fairness and reasonableness as organisations which are, strictly speaking, public bodies. This applies in particular in relation to membership disciplinary processes.
We also act for individual people or organisations who are affected or aggrieved by the acts or decisions of public or quasi-public bodies, including those who are subject to regulation.
4. Judicial Review
(a) What is judicial review?
It is the means by which the Court examines the acts and omissions of public bodies. It is not an appeal as such and the Court will not usually substitute its own view on the matter in question. Rather, it is a review of the legality of the act or decision in question. The purpose of the procedure is not necessarily to achieve the “right” decision at the end of the day, merely to ensure that the individual is treated fairly by the authority.
(b) Who can be judicially reviewed?
Any person or body performing a function of a public nature, whether obviously a public body or not, is susceptible to be challenged in judicial review proceedings. Often the person or body is performing a public function pursuant to statutory authority, but this is not always the case. The Court has also deemed many private bodies carrying out public functions to be judicially reviewable (in respect of its exercise of those functions).
(c) On what grounds can a judicial review be brought?
Broadly, where the act or omission in question is
(i) unlawful, or
(ii) unreasonable, or
(iii) procedurally unfair, or
(iv) in breach of a person’s human rights under the European Convention on Human Rights (ECHR).
(d) When can a judicial review be brought?
The Court requires a judicial review claim to be commenced as soon as possible and, in any event, within a maximum of three months. Action must therefore be taken promptly and time is short. However, judicial review is also seen as an option of last resort and the claim is likely to be dismissed unless all other routes of redress have been tried and failed.
(e) What powers do the Courts have in judicial review?
If a claim for judicial review is successful, the Court will usually order one or more of the following remedies:
(i) an order quashing the decision
(ii) an order requiring something to be done (a mandatory order)
(iii) an order prohibiting an action (a prohibiting order)
(iv) an injunction
(v) a declaration (for example that the public body’s decision was unlawful)
(vi) damages (in limited circumstances)
5. When can the Human Rights Act be used?
Actions can be brought under the HRA
– By a person (or organisation) who is a “victim” of an act by a public authority which is incompatible with that person’s rights under the ECHR.
– For a declaration that a statute is incompatible with an ECHR right.
Breach of an ECHR right may also be a ground for judicial review (see above).
The HRA can also be used in litigation between private individuals/bodies to the extent that it can be argued that the Court (which is itself a public body) must not give a judgment which involves the unwarranted infringement of an ECHR right for either party.
NOTE: Some ECHR rights are absolute whereas others are qualified (i.e. the Court has to consider whether interference with the exercise of the right is justified in the circumstances of the particular case).
6. How could I fund a public law case?
For cases not involving Court proceedings, we would generally charge on a time basis according to our usual rates at the relevant time.
Where Court proceedings are commenced, you may be able to obtain insurance to pay the other side’s costs if you lose or, in exceptional cases, it may be possible to obtain an order from the Court protecting you from any liability to pay the other side’s costs whatever the outcome of the case. We would need to discuss all the different possibilities with you before agreeing the basis on which we could proceed in any case.