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Exercise 3. Read the text. Analyse the matter of the Takeover Panel case.






The functional approach to the scope of administrative law provided the courts with legal resources for dealing with the constitutional developments initiated by the Thatcher regime. In the ground-breaking Takeover Panel case the issue was whether decisions of the City Panel on Takeovers and Mergers were subject to judicial review for compliance with administrative law. The Panel had no statutory or prerogative decision-making power; nor was the decision in question supported by any contractual arrangement between the Panel and the company affected by the decision (Datafin). The Panel's authority was accepted by the financial community generally, but it lacked any formal legal foundation. Equally important for present purposes, the Panel was not a government entity. It was set up by and for, and exercised authority over, private financial institutions. In essence, the Court held that the decisions of the Panel were subject to judicial review because the Panel was performing regulatory functions of public importance that significantly affected the interests of individuals, and because its activities were embedded in a framework of statutory regulation of the financial services industry (even though the Panel itself was not operating under a statute). If the Panel had not existed, it was likely that the government would have established a statutory body to do its work.

Coincidentally, at much the same time as these issues were bubbling to the surface, the House of Lords held that decisions of central government were reviewable by the courts according to the principles of administrative law regardless of whether the power to make the decision was given by a statute or, on the contrary, was a 'prerogative' power—that is, a power inherited by central government from the monarchy in its historical capacity as the executive branch of government. The basic principle underlying this decision was that the reviewability of decisions should depend not on the source of the power to make the decision—that is, statute or common law—but on the substance or nature of the decision. The question was whether the court was the constitutionally appropriate body to review the decision, and whether it was competent, by reason of its procedures and the qualifications of its members, to do so—in other words, whether the decision was 'justiciable'. The seeds of this definition of the scope of administrative law—in what have come to be called 'functional' terms—are probably to be found in an earlier decision of the Court of Appeal in which it was held that decisions of the Criminal Injuries Compensation Board were amenable to judicial review even though the Criminal Injuries Compensation Scheme, which the Board administered, was not contained in either primary or secondary legislation.

Why is the Takeover Panel case considered a ground-breaking case?


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