Judicial review is defined by Part 54 of the Civil Procedure Rules 1998 (SI 1998/3132) as an application or claim to the Court to review the lawfulness of an enactment (i.e. legislation) or a ‘decision, action or failure to act in relation to the exercise of a public function’.
This means that judicial review is only available to challenge decisions, acts or omissions made in the exercise of a ‘public function’. In determining whether a decision or act is the exercise of a public function, the Court will consider:
- the source of the power that is being exercised . If the power being exercised derives from legislation or the royal prerogative (Crown powers that are not set out in legislation and which may be exercised by government), it would usually be considered a public function. On the other hand, where the power being exercised derives from a private agreement (e.g. a contract between the decision-maker and another person) this would tend to be considered a private function and would therefore not be challengeable through judicial review.
- the nature of the work or activity carried out by the public authority in question . The source of the power being exercised is not in itself determinative of whether a function is a public one; the Court will also consider whether the activities that the public authority is carrying out have a public character. The Court will consider factors such as whether the public authority is financed from the public purse and whether other persons are required to comply with the public authority’s decisions (and the sanctions for failing to do so). The Court will find that local authorities and government departments will often be carrying out functions of a public character. In some cases, the functions carried out by a seemingly ‘private’ body will be considered to be public functions that are judicially reviewable. By way of example, the Court has found that a private school, which would ordinarily be considered a private body, was exercising a public function where it received money from the Secretary of State to provide education for particular students. In respect of those particular functions, the private school was considered to be in the same position as a state school; the functions were public functions, and were challengeable by judicial review.
The Court has consistently found the functions of certain types of body to be private functions (and are therefore not judicially reviewable). Examples include sporting bodies such as the Football Association and the Jockey Club, and religious bodies such as a chief rabbi or a mosque.