When are private body decisions amenable to judicial review?

TV debates have become a key feature of the modern election cycle and the recent High Court decision in R (Liberal Democrats; SNP) v ITV [2019] EWHC 3282 provides further clarity on whether and the extent to which a private body may be amenable to judicial review when exercising 'public' functions.

  ITV hosted a leaders’ General Election debate on 19 November 2019 involving leaders of the Labour and Conservative Party. The Liberal Democrats and the Scottish National Party argued that their exclusion from the ITV debate was unfair and unlawful and on the day before the scheduled debate, they applied for a judicial review to stop it going ahead in this format.

In light of the urgency, the case was dealt with by way of a rolled-up hearing, with the detail of the decision following later.

The High Court refused the application on the grounds that:

1. ITV had not been exercising a public function and was therefore not amenable to judicial review; and
2. The appropriate remedy available to the parties was to lodge a complaint with Ofcom instead.

ITV’s decision amenable to judicial review?

The crux of the case centred on whether ITV was exercising a 'public function'.

The Court noted that the starting-point is that there must be a public element before judicial review can be available. The nature of the power and function being exercised may also need to be considered, as established in R v Panel on Take-overs and Mergers, ex p. Datafin Plc [1986] 1 QB 815.

Their Lordships relied on the reasoning set out in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 that “the more closely the acts that could be of a private nature are enmeshed in the activities of a public body, the more likely they are to be public. However, the fact that the acts are supervised by a public regulatory body does not necessarily indicate that they are of a public nature.”

Accordingly, the Court held that while Ofcom itself (whose regulatory powers and functions derive from statute) is potentially amenable to judicial review, those whom Ofcom regulates (such as ITV) are not also necessarily amenable to judicial review.

Implications for commercial broadcasters

The Court explained that the activities of a broadcaster such as ITV are purely commercial even though it broadcasts to the public at large. The source of its powers and functions derives from its Memorandum and Articles of Association, not from statute. The Court noted that the function of commercial broadcasting is not intrinsically a governmental or quasi-governmental function and it does not become so even when the broadcasting is directed at political or industrial issues or takes place during a General Election. The Court noted that similar decisions of broadcasters in New Zealand were held to be judicially reviewable, but the different statutory schemes mean that those decisions are not binding.

The Court observed that the scheme of statutory provisions set out in the Broadcasting Acts 1990 and 1996 and the Communications Act 2003 alongside the Ofcom Broadcasting Code is to entrust the regulation of commercial broadcasters to a specialist body (Ofcom). The courts do not and should not exercise a supervisory jurisdiction directly over the activities of commercial broadcasters. However, the decisions of Ofcom itself are amenable to judicial review, in an appropriate case, on conventional public law grounds.

Whether the BBC is to be regarded as exercising a public function is not a matter on which the Court expressed an opinion. 

The role of Ofcom

The Court noted Ofcom’s published policy is not to intervene prior to any broadcast and acknowledged that an ‘after the event’ complaint to Ofcom might procure no effective remedy in certain circumstances. Even despite this, their Lordships held that judicial review was not available and a complaint to Ofcom was and is the sole remedy available in this case.

Comment

This decision will be seen as good news for broadcasters. It upholds their ability to make editorial judgments on what constitutes appropriate coverage. Some will regard this as an illustration of the respect for journalistic and editorial freedom that we expect under Article 10 of the ECHR.

It does however raise serious questions about the effectiveness of Ofcom as a regulator. If an aggrieved party can only lodge a complaint to Ofcom after the event, then arguably the damage will already have been done, a point made by Counsel for the Liberal Democrats and the SNP in this case, albeit one that the Court deemed ‘seriously overstated’ on the facts of the case.

Instead, the Court accepted the submissions made by Counsel for ITV: to prevent a broadcast from going ahead, Ofcom might be able to apply to the court for an advance 'quia timet' injunction in enforcement of the conditions of the licence, or a person could bring judicial review proceedings against Ofcom requiring it to do so. However, it seems unlikely that Ofcom would ever decide to intervene before a broadcast airs, and a judicial review of Ofcom's refusal to seek a quia timet injunction is arguably an unnecessarily convoluted mechanism in respect of a matter of such substantial public importance as a General Election.  Nevertheless, it is wholly understandable that the Court would wish to avoid engaging in qualitative decision-making about matters of editorial and political policy.  Such reluctance may be all the more understandable in light of the Conservative election victory and pledge to review a number of matters relating to the constitution (including, but not limited to, the role of judicial review).

The Court reiterated the following propositions from R (Holmcroft Properties Ltd) v KPMG LLP [2018] EWCA Civ 2093 to help assess whether a decision of a private body may be amenable to judicial review:

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 necessarily 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.
5. Functions of a public character are essentially functions that are governmental in nature.

Written by Olivia Rogers, Trainee Solicitor