The Scope of Judicial Review
PUBLIC LAW AND PRIVATE LAW
As we noted in the last chapter, to say that a decision or action is subject to judicial review is to say that it can be challenged on the basis of the rules and principles of public law which define the grounds of judicial review. Public law can, of course, be contrasted with private law. Private law might be defined as law regulating the relations of private persons, whether individuals, corporations, or unincorporated associations, with one another. This definition suggests that public law in a broad sense (not confining ourselves to the law of judicial review) concerns the activities of governmental bodies, by which we mean the legislature, the departments of central government and the very large number of bodies and agencies which can be described as offshoots of these departments (these are often called 'fringe bodies'), courts and tribunals, local government, and, perhaps, the police1 and the armed forces. Public law regulates relations between such governmental agencies and private individuals on the one hand, and between different governmental agencies on the other. Further, just as private law defines what is meant in law by a 'person', so public law is also concerned with the creation and (certain aspects of) the organization of governmental agencies.
Let us rest content for the moment with this definition of public law, and ask why a distinction is drawn between public and private law.2 The obvious but not very informative reply is: because we want to subject activities of governmental agencies to a different legal regime from that which regulates the activities of private individuals. It is possible to suggest a number of reasons for this. First, since the government has the job of running the country it must have some functions, powers and____________________