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Title: The conception of public power in judicial review
Author: Campbell, C. D.
Awarding Body: University of Cambridge
Current Institution: University of Cambridge
Date of Award: 2006
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The central thesis of this dissertation is that for the purposes of English domestic judicial review, public power is best conceived of as being synonymous with monopoly power; in other words, power that operates free from effective competition. The dissertation is divided into three parts. In the first part, the test currently relied on by the English courts for distinguishing between public power and private power in the context of judicial review are examined, and their deficiencies identified. It is contended that each test suffers from one or more of the following problems: it lacks a normatively attractive underpinning; it cannot be coherently applied in practice; and the circumstances in which power will be subjected to judicial review pursuant to the application of the test bear little resemblance to the circumstances in which the courts actually assume review jurisdiction. Consideration is also given the first part of the dissertation to jurisprudence relating to the Human Rights Act 1998, European competition law and the direct effect of European Community directives, to ascertain whether that jurisprudence might be of assistance in the determining whether power is public for the purposes of English domestic judicial review. It is concluded that that jurisprudence is of no assistance. In the second part of the dissertation, the conception of public power as monopoly power is outlined, and arguments in favour of such a conception advanced. To begin, normative and functional arguments in support of the conception of monopoly power as public power are advanced. Then, it is contended that the circumstances in which power will be subject to the court’s review jurisdiction pursuant to the monopoly power conception of public power very closely match the circumstances in which the courts actually assume review jurisdiction. Finally, it is argued that underlying the conception of public power advanced in the dissertation is a concern to protect people against the adverse effects of power exercised in contravention of the principles of good administration. That concern, it is suggested, also pervades the law relating to standing, the grounds of review, and remedies. The third part of the dissertation examines aspects of the operation of the monopoly power conception of public power. Hence, for instance, the circumstances in which power will be monopolistic are elaborated upon. To lend a concrete context to that examination, it is conducted in the context of the form of power generally known as privatized power, but referred to in the dissertation, for reasons that are explained, as divested power. Further, consideration is given to the manner in which the successful bringing of review applications against the monopolistic exercise of divested power may be impeded by the unavailability of certain grounds of review with regard to divested power, and also by the operation of the doctrine of deference, the doctrine of exhaustion and privative clauses.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available