An Introduction to Administrative Law

By Peter Cane | Go to book overview

2
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

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1
The constitutional position of the police is complex and controversial: L. Lustgarten, The Governance of Police ( London, 1986); G. Marshall and B. Loveday in J. Jowell and D. Oliver (eds), The Changing Constitution, 3rd edn ( Oxford, 1994), ch. 11.
2
See further P. Cane in J. Eekelaar and J. Bell (eds), Oxford Essays in Jurisprudence, Third Series ( Oxford, 1987), ch. 3. A case against distinguishing between public law and private law is made by C. Harlow ( 1980) 43 MLR 241.

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An Introduction to Administrative Law
Table of contents

Table of contents

  • Clarendon Law Series ii
  • Title Page iii
  • Preface v
  • Contents vii
  • Contents xxxv
  • Part I - Rules and Principles of Judicial Review 1
  • 1 - The Nature of Judicial Review 3
  • 2 - The Scope of Judicial Review Public Law and Private Law 12
  • 3 - Applicants 42
  • 4 - Remedies Uses and Availability 62
  • 5 - Procedures 89
  • 6 - Authority 109
  • 7 - The Decision-Making Process (i) 133
  • 8 - The Decision-Making Process (ii) 160
  • 9 - The Output 208
  • 10 - Estoppel 218
  • Part II - Rules and Principles of Liability II 231
  • II- Introduction 233
  • 12 - Liability in Tort 241
  • 13 - Government Contracts 257
  • 14 - Restitution 276
  • Part III- Information 279
  • 15 - Information and Litigation 281
  • 16 - Government Secrecy and Freedom of Information 292
  • Part IV - Non-Judicial Control 301
  • 17 - Parliament the Constitutional Functions of Parliament 303
  • 18 - Investigating Complaints 314
  • 19 - Tribunals 331
  • Part V - Wider Perspectives on Judicial Control 345
  • 20 - Constitutional and Political Background 347
  • 21 - Judicial Review and the Administrative Process 378
  • Index 393
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