In order to understand the peculiar elements of the original English model of public law it is important to start from an analysis of what must be considered as a public authority for the purpose of judicial review, taking into account on this regard also the relevant influence of the new provisions of the HRA 1998. After a subsequent brief overview about the main characteristics of classical system of judicial review, the paper will focus on the different aspects of the dialogue-model of public administration now spreading through English public law and the relating issue of the judicial control on these new forms of administrative action. However to the so-called dialogue-model can be referred to in several meanings, considering the different degrees of ‘dialogue’ which applies inside the traditional forms of administrative proceedings or in the newest form of governance between the public and private actors. In this way, it is possible to talk about ‘embryonic forms’ of dialogue inside the most traditional administrative decision-making processes, referring to the public inquires as an example of participation of individuals and private parties, which realise not only the aim of defence but also the function of co-decision in the administrative action finally taken by the public authority. Stronger models of dialogue between public authorities and civil society, outside from a formal administrative proceedings, can moreover be found in relation with the recent case law about the protection of legitimate expectations or, most of all, in any case in which private actors perform governance functions. The issue of the role of private actors in public government engage the courts in judicial review. Several questions may arise, for instance about the determination of the limits to the range of governance functions which are transferable to private actors or the appropriateness of imposing public law obligations on private actors. An analysis of these questions and their possible answers will be the aim of the final part of the study.
Traditional Model vs. Dialogue Model in UK Legal System
MIRATE, SILVIA
2011-01-01
Abstract
In order to understand the peculiar elements of the original English model of public law it is important to start from an analysis of what must be considered as a public authority for the purpose of judicial review, taking into account on this regard also the relevant influence of the new provisions of the HRA 1998. After a subsequent brief overview about the main characteristics of classical system of judicial review, the paper will focus on the different aspects of the dialogue-model of public administration now spreading through English public law and the relating issue of the judicial control on these new forms of administrative action. However to the so-called dialogue-model can be referred to in several meanings, considering the different degrees of ‘dialogue’ which applies inside the traditional forms of administrative proceedings or in the newest form of governance between the public and private actors. In this way, it is possible to talk about ‘embryonic forms’ of dialogue inside the most traditional administrative decision-making processes, referring to the public inquires as an example of participation of individuals and private parties, which realise not only the aim of defence but also the function of co-decision in the administrative action finally taken by the public authority. Stronger models of dialogue between public authorities and civil society, outside from a formal administrative proceedings, can moreover be found in relation with the recent case law about the protection of legitimate expectations or, most of all, in any case in which private actors perform governance functions. The issue of the role of private actors in public government engage the courts in judicial review. Several questions may arise, for instance about the determination of the limits to the range of governance functions which are transferable to private actors or the appropriateness of imposing public law obligations on private actors. An analysis of these questions and their possible answers will be the aim of the final part of the study.
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