“Public interest” and the reach of judicial review

In the vast majority of judicial review cases, the key issue for the courts will be whether a public body has lawfully exercised powers that have been given to it by statute. In broad terms, this is consonant with the reality of much of government in the UK; that is, public bodies are entrusted with public law powers and duties given to them by statutes that have been enacted either by the Westminster Parliament and/or by the devolved legislatures. However, to the extent that statute is where most public law powers and duties originate, some decision-makers exercise powers that affect the public as a result of historical accident and in the absence of any statutory authorisation. While such decision-makers may be subject to control by some other mechanism – for instance, through a self-regulatory body – there have been some areas in which non-statutory decisions have apparently been unimpeachable in the courts. To avoid that outcome, the courts have recast such decisions as public law in form and they have drawn upon “the public interest” when doing so.

The jurisdiction in which this line of case law is most developed is Northern Ireland. Associated with Kerr J’s judgment in Re McBride’s Application [1999] NI 299 the “public interest test” holds that:

“It appears to me that an issue is one of public law where it involves a matter of public interest in the sense that it has an impact on the public generally and not merely on an individual or group. That is not to say that an issue becomes one of public law simply because it generates interest or concern in the minds of the public. It must affect the public rather than merely engage its interest to qualify as a public law issue. It seems to me to be equally clear that a matter may be one of public law while having a specific impact on an individual in his personal capacity.” ([1999] NI 299, 310)

This test is potentially very broad in its reach and has been used by the courts on a number of occasions. For instance, in Re Kirkpatrick’s Application ([2003] NIQB 49, the High Court in Northern Ireland accepted that the Lough Neagh Fishermen’s Co-operative Society’s decision to refuse the applicant a licence for eel fishing would have been amenable to judicial review had the applicant not had an alternative remedy in the form of tribunal proceedings. Although the Co-operative Society is a private organisation, it has an historical and exclusive right to grant licenses for eel fishing on Lough Neagh and the judge considered that

“the public has a legitimate concern as to how fish stocks are maintained and how fishing activities are regulated in this substantial and important natural asset … But for the historical accident that fishing rights are privately owned by the Society one would expect that such an important natural resource would be controlled by a public agency accountable to government and ultimately the public”.

And another case in which the test was used was Re City Hotel (Derry) Ltd’s Application ([2004] NIQB 38), which was a dispute between a property company and the Department of Social Development about costing for the development of lands owned by the Department. Although the Department argued that the dispute was commercial and not subject to judicial review, Weatherup J accepted that the matter was one of public law. As the judge put it,

“The decision under challenge is not a decision made directly in connection with the contractual relationship between the applicant and the Department … The issue concerns the terms on which public lands might be developed and disposed of … The site is publicly owned and the public have a right to expect that the development and disposal of the site will be undertaken by the Department in the public interest”.

These cases are noteworthy not just because they have marked an expansion of judicial review into new types of disputes but also because they have seen the courts elaborate upon the nature of the “public interest” that arose on the facts. As is well-known in debates about the meaning of the public interest, the “public interest” is a term that is both vague and potentially value-laden, and its use in other contexts has been much criticised for its lack of transparency. However, by linking the “public interest” in Kirkpatrick and City Hotel to concrete considerations, the courts have gone some way towards  giving content to the “public interest”. The case law can in that sense be regarded as more transparent than not.

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