scholarly journals Outsourcing to Not-for-Profits: Can Judicial Enforcement of Charity Law Provide Accountability for the Performance of ‘Public’ Functions?

2020 ◽  
Author(s):  
Ian Murray ◽  
Murray Wesson
Keyword(s):  
Judicial Review ◽  
Public Law ◽  
Decision Makers ◽  
Front Line ◽  
The Public ◽  
Time Limits ◽  
Government Functions ◽  
Public Resources ◽  
Legal Accountability ◽  
The Public Sphere

Governments increasingly rely on charities to provide services on behalf of government. Decisions on outsourced functions can relate to the distribution of public resources, such as the provision of housing, education or legal assistance. Accordingly, such decisions can be contentious and outsourcing potentially places that contention in the private sphere rather than the public sphere. This article examines the extent to which outsourcing service delivery to charities affects the ability of current or potential service recipients to hold decision-makers accountable. It argues that outsourcing government functions to charities will often place such functions beyond the scope of public law judicial review. However, charity law contains accountability mechanisms that have the potential to fill the gap. These mechanisms are identified and then compared with the availability of judicial review for government decisions by reference to scope, grounds, standing, time limits and remedies. This article finds that in many circumstances there should be no diminution of legal accountability. Nevertheless, charity law is less tested than administrative law, is not as effective in dealing with service decisions made by front line employees and does not as readily guarantee procedural fairness. Balanced against this, charity law may provide more generous time limits and better enable systemic issues to be addressed.

Administrative Procedure and Judicial Review in France

2021 ◽  
pp. 50-52
Author(s):  
Delphine Costa
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Administrative Law ◽  
Public Law ◽  
The Public ◽  
Administrative Procedure ◽  
Judicial Remedy ◽  
Individual Decisions ◽  
Laws And Regulations ◽  
Administrative Justice

This chapter describes administrative procedure and judicial review in France. In French public law, no constitutional provision provides for judicial review of administrative measures. Nor is there a convention providing for judicial review of administrative measures. This is only envisaged by the laws and regulations, in particular the Administrative Justice Code and the Code of Relations between the Public and the Administration. The administrative courts exercise extensive control over the acts or measures of the public administration, including both individual decisions and regulatory acts, but some are nonetheless beyond judicial review. Where an act or measure is contested on procedural grounds, judicial review takes place only under certain conditions: the procedural defect must have deprived the applicant of a guarantee or it must have influenced the meaning of the decision taken. Two types of judicial remedy exist in administrative law: it is therefore up to the applicant to limit their application before the administrative judge.

R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994] 2 CMLR 548, High Court (Queen’s Bench Division)

2019 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
Expert Knowledge ◽  
Public Law ◽  
High Court ◽  
The Public

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994] 2 CMLR 548, High Court (Queen’s Bench Division). This case concerned whether organizations could demonstrate a sufficient interest for the purposes of bringing a judicial review on the basis of their expert knowledge and the public interest in bringing an application for review forward. The document also includes supporting commentary from author Thomas Webb.

13. The nature of judicial review

2020 ◽  
pp. 277-308
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision ◽  
Public Bodies

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is outlined.

scholarly journals Should we fund research randomly? An epistemological criticism of the lottery model as an alternative to peer review for the funding of science

2019 ◽  
Vol 29 (2) ◽  
pp. 150-157
Author(s):  
Baptiste Bedessem
Keyword(s):  
Peer Review ◽  
Selection Process ◽  
Peer Review Process ◽  
The Public ◽  
Alternative Funding ◽  
Public Resources ◽  
The Subject ◽  
The Public Sphere ◽  
Epistemological Analysis ◽  
Fund Research

Abstract The way research is, and should be, funded by the public sphere is the subject of renewed interest for sociology, economics, management sciences, and more recently, for the philosophy of science. In this contribution, I propose a qualitative, epistemological criticism of the funding by lottery model, which is advocated by a growing number of scholars as an alternative to peer review. This lottery scheme draws on the lack of efficiency and of robustness of the peer-review-based evaluation to argue that the majority of public resources for basic science should be allocated randomly. I first differentiate between two distinct arguments used to defend this alternative funding scheme based on considerations about the logic of scientific research. To assess their epistemological limits, I then present and develop a conceptual frame, grounded on the notion of ‘system of practice’, which can be used to understand what precisely it means, for a research project, to be interesting or significant. I use this epistemological analysis to show that the lottery model is not theoretically optimal, since it underestimates the integration of all scientific projects in densely interconnected systems of conceptual, experimental, or technical practices which confer their proper interest to them. I also apply these arguments in order to criticize the classical peer-review process. I finally suggest, as a discussion, that some recently proposed models that bring to the fore a principle of decentralization of the evaluation and selection process may constitute a better alternative, if the practical conditions of their implementation are adequately settled.

15. Introduction to judicial review

2021 ◽  
pp. 356-374
Author(s):  
Anne Dennett
Keyword(s):  
Judicial Review ◽  
Review Process ◽  
Public Law ◽  
The Rule Of Law ◽  
The Public ◽  
Locus Standi ◽  
Government Power ◽  
Executive Action ◽  
And Control ◽  
Public Bodies

This chapter looks at the purpose and constitutional significance of judicial review. Where public bodies overreach themselves by acting unlawfully, the judicial review process allows individuals to hold public bodies to account in the courts, ensuring that governmental and public powers are lawfully exercised. This maintains the rule of law by helping to protect the public from the arbitrary or unreasonable exercise of government power. Judicial review is therefore a powerful check and control by the courts on executive action, but it also raises issues of whether the process gives the judiciary too much power over the elected government. There are three preliminary or threshold issues that a claimant needs to satisfy when bringing a judicial review claim. To be amenable to judicial review, the claim must raise a public law matter; it must be justiciable; and the claimant must have standing (locus standi).

scholarly journals A New Perspective on the Public–Private Divide? Justiciability of Government Contracting Decisions Following Ririnui and Problem Gambling

2018 ◽  
Vol 49 (1) ◽  
Author(s):  
Caleb O'Fee
Keyword(s):  
New Zealand ◽  
Problem Gambling ◽  
Judicial Review ◽  
Public Law ◽  
Government Contracting ◽  
The Public ◽  
Proper Role ◽  
The Supreme Court ◽  
New Perspective ◽  
State Of Affairs

Behind every theory of administrative law lies a theory of the state. Nowhere is this more apparent than in the application of judicial review to government contracting decisions. New Zealand courts have long struggled to adopt a consistent and coherent approach in this area, and two recent decisions of relevance do very little to improve the situation. This article argues that a decision of the Supreme Court in Ririnui significantly broadens the scope of justiciability of government contracting decisions by providing an exception to Mercury Energy. The Court of Appeal's approach in Problem Gambling is more cautious but has nevertheless resulted in a broadening of the range of circumstances where government contracting decisions will be subject to judicial review. Beyond these limited findings the law both in New Zealand and overseas continues to lack consistency and coherence. This article suggests that while this state of affairs is undoubtedly the result of the application of a public law cause of action to a context which sits on the public law–private law divide, the courts should stop relying on an inconsistent doctrine and recognise that cases are being decided on the basis of normative conceptions of the proper role of judicial review in this context.

13. The nature of judicial review

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is considered.

10. Judicial review: access to review and remedies

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
Legal Basis ◽  
Legal Requirements ◽  
The Public ◽  
Meaning And Purpose

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

scholarly journals The possibilities of consensual resolution of judicial conflicts with the Public Administration

2018 ◽  
Vol 18 (72) ◽  
pp. 31-50
Author(s):  
Gabriel Perlingeiro
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
A Priori ◽  
Public Law ◽  
Clear Understanding ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Legal Studies

This text endeavors to define the theoretical limits of the capacities of the public administrative authorities to reach consensual solutions to disputes within the framework of judicial review. It is motivated by the lack of a clear understanding in Brazilian law of the border area between the legal relations of public and private law involving the public authorities, and the expressions “inalienable right” (or “inalienable interest”) and “public interest” as shown by the inexplicable asymmetry between what the public administrative authorities can do within a judicial proceeding and outside one. Based on a comparative study of common law versus civil law legal systems and an examination of the treatment of the subject in Brazilian statutes, case law and legal studies, this article reviews the relationship between the public interest and inalienability, demonstrating, in conclusion, that the possibility of the administrative authorities to enter into settlements or follow similar practices should not be rejected a priori, even in cases of public law. According to the author, there are three possible scenarios in which public administrative authorities may resort to consensual dispute resolution in the context of the judicial review: in private-law relationships, in public-law relationships with respect to the exercise of administrative actions prescribed by law and public-law relationships with respect to the exercise of discretionary powers.

scholarly journals TERRITORIALIZAÇÃO DE POLÍTICAS PÚBLICAS: APONTAMENTOS SOBRE A COVID-19 E O CÓDIGO DE ENDEREÇAMENTO POSTAL NAS FAVELAS CARIOCAS

2021 ◽  
Vol 14 (22) ◽  
pp. 39
Author(s):  
André Luiz da Silva LIMA (COC/FIOCRUZ)
Keyword(s):  
Public Policies ◽  
Postal Address ◽  
The Public ◽  
Role Of The State ◽  
Public Resources ◽  
The Face ◽  
Street Address ◽  
The Public Sphere ◽  
The Right

Em tempos de crise humanitária, provocada pela Pandemia do novo coronavírus, debates sobre o uso inteligente dos recursos públicos ocupam os tabloides com a opinião dos especialistas. No conjunto da sociedade brasileira, a fratura da desigualdade social ficou ainda mais exposta, e com isso a discussão em torno de políticas públicas e o papel do Estado diante do delicado momento ganhou espaço na esfera pública. Nesta direção, cabe referenciar a existência de contingentes populacionais significativos vivendo em localidades que não possuem o acesso adequado a serviços públicos básicos, que não gozam do direito à Cidade, e que são sistematicamente invisibilizados, inclusive no plano da estatística pública. São localidades sem CEP (Código de Endereçamento Postal), importantes não apenas para o serviço essencial de recebimento de cartas e encomendas pelos Correios, mas para atribuição de endereço aos indivíduos em contato com as malhas do Estado. Não ter endereço com CEP, por logradouro, significa ter a existência -espacialmente falando - atrelada a outro lugar que não é onde se vive, e por consequência, com danos ao exercício da cidadania plena. O enfrentamento ao Covid-19 depreende uma ação do Poder Público de forma eficaz, de políticas públicas articuladas, devidamente financiadas, transparentes e, não menos importante, territorializadas.Palavras Chave: Favelas. Covid-19. Políticas PúblicasTERRITORIALIZATION OF PUBLIC POLICIES: NOTES ABOUT COVID-19 AND THE POSTAL ADDRESS CODE IN RIO FAVELASIn times of humanitarian crisis, caused by the Pandemic of the new coronavirus, debates about the intelligent use of public resources occupy the tabloids with the opinion of experts. In Brazilian society as a whole, the fracture of social inequality was even more exposed, and with this the discussion around public policies and the role of the State in the face of this delicate moment gained space in the public sphere. In this sense, it is worth mentioning the existence of significant population contingents living in locations that do not have adequate access to basic public services, that do not enjoy the right to the City, and that are systematically made invisible, including in terms of public statistics. They are locations without CEP (Postal Address Code), important not only for the essential service of receiving letters and parcels by the Post Office, but for assigning addresses to individuals in contact with the state's networks. Not having a postal address, by street address, means having one's existence - spatially speaking - linked to another place that is not where one lives, and consequently, with damage to the exercise of full citizenship. The confrontation with Covid-19 implies an effective government action, articulated public policies, duly financed, transparent and, not least, territorialized.Keywords: Favelas. Covid-19. Public policy

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