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Cover Administrative Law

4. The Scope of Public Law Principles  

Mark Elliott and Jason Varuhas

This chapter examines the scope of judicial review as it applies to the principles of public law. It first explains why discretionary powers conferred by legislation are not always subject to judicial review before discussing prerogative powers and their amenability to judicial review. It then considers justiciability as the limiting factor in the extent to which the in-principle reviewability of the prerogative is of any practical significance. It also examines issues regarding de facto powers, with particular emphasis on the scope of judicial review, the limits of review and its underlying rationale, and the extent to which contractual arrangements may displace the courts' willingness to review. Finally, it explores which public bodies must respect human rights under Section 6 of the Human Rights Act 1998. A number of relevant cases are cited throughout the chapter, including R v. Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815.