Judicial Review is available when a public function is being exercised: Section 31 of the Senior Courts Act 1981 and CPR 54.2(1). A body may not be exercising a public function for all purposes. The question then is whether it is exercising a public function in the particular context and for the particular purposes. The applicable legal principles have been revisited by a Divisional Court (Davis LJ and Warby J) in R (Liberal Democrats and SNP) v ITV (2019) EWHC 3282 (Admin) from paragraph 65. The Court said, at paragraph 66, that “There can be little doubt that the reach of judicial review has to an extent been expanded by the courts over the last few decades” and “… the question of whether a particular decision is or is not amenable to judicial review in any given situation must depend on the background and circumstances in which the decision sought to be impugned is made”. In other words, context is all.
The Court referred to various authorities, including, at paragraph 71, the Supreme Court decision in YL v Birmingham City Council (2008) 1 AC 95, and, at paragraph 72, to the following propositions: (1) the fact that a service is for the public benefit does not mean that providing the service is a public function; (2) the fact that a function has a public connection with a statutory duty of a public body does not mean that the function is itself public; (3) the fact that a public authority could have performed the function does not mean that the function is a public one if done by a private body; (4) the private profit-making motivation behind a private body’s operations points against treating it as a person with a function of a public nature; and (5) functions of a public character are essentially functions which are governmental in nature.
The Court further observed, at paragraph 84, that a regulatory body, say OFCOM, may be deemed public, but the activities of a body which it regulates may be characterised as private. Then the Court’s jurisdiction does operate, but at one remove, by reference to the decisions of the regulator: paragraph 86. The Court’s conclusion, at paragraph 94, was that ITV was not amenable to judicial review in relation to broadcasting General Election debates. Permission to apply for judicial review was refused: paragraph 118.