1. Would you be able to get judicial review of a decision by the government to privatize the British army by selling it to a company and paying the company for security services?

• A decision like that would not be protected from judicial review just because it is a prerogative decision (see 7.2.1). And it is a decision that would be so unreasonable that no reasonable government would do it. So it would be Wednesbury unreasonable, and you might think that it would be reviewable on that ground. But in fact, judicial review is not available for every decision that is so unreasonable that no public authority would make it (see 7.3.2).
• What is the proper forum for controlling the Government on a decision of this kind? Parliament or the courts?
• Should a court refuse permission to seek judicial review on the ground that the considerations at stake are non-justiciable?
• Does the decision need a form of political accountability of a form that courts cannot provide?
• Not every bad decision is a matter for judges!

2. How is an auditor different from an ombudsman? 

• Auditors investigate for particular purposes: to identify financial waste and to identify risks (of corruption or inefficiency) to public finance. They promote fiscal accountability; ombudsmen promote accountability for good administration.
• Auditors are not restricted to investigating complaints; they conduct regular financial inspections.

3. No public authority should be able to expand its powers by making an ultra vires contract. No public authority should be able to get out of a contract by claiming that it had no power to make the contract. Can you reconcile these two ideas?

• Is the second idea true? It seems to be an abuse of power for a public authority to back out of an agreement that it has made. Consider the protection that the law gives to legitimate expectations, even when there is no contract (8.4). But even if a public authority has led the other party to think that it has a valid contract, is there necessarily an abuse of power when the court refuses to enforce the agreement?
• Consider the Crédit Suisse v Allerdale case. If the deal to finance the leisure centre was outside the Council’s powers, is there an abuse of power when the court holds the Council’s unlawful guarantee to be unenforceable?
• Does it matter whether, when a contract is ultra vires, the other party to the purported contract has reason to know that it is invalid, or to doubt whether it is valid?
• Should there be a rule that ultra vires contracts will be enforced when it would be unfair to the other party to treat it as unenforceable? Or would that be a mistake, because of the public interest in keeping public authorities within their powers?

4. Does the common law of due process require courts to decide the process by which public authorities decide whether to enter into a contract?

• European Union law requires the courts to do so for a particular purpose: the project of creating a free market for goods and services in the EU (see 15.4.4).
• Does the common law control the process of contract formation? In principle, you might say that it must do so, because of the principle of due process: any government decision is required to give procedural protection to those affected by a decision that is proportionate to the issues at stake (including the way in which the decision affects the complainant).
• But if the issue at stake is, e.g. whether to buy supplies from the complainant or from another supplier, the common law will ordinarily conclude that, even though the decision affects the unsuccessful competitor, the public authority buying the supplies has no duty to give them a hearing or even reasons. Why is that? Is it unfair to buy supplies from one vendor without giving reasons for the decision to another vendor?

5. Is a private nursing home carrying out a public function when it houses a resident whose accommodation is paid for by a public authority?

• Yes, in a sense, because the resident is receiving the care authorized in the public interest by the National Assistance Act 1948 s 21, which allows local authorities to provide ‘residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them’. The private accommodation is the technique by which the public function of social care is carried out.
• No, in a sense, because although a public function is being carried out, it is being carried out by the local authority. The private nursing home is providing the care for profit. The functions of the nursing home are not public functions, because it is carrying out its side of a commercial deal.
• Which is the relevant sense of ‘public function’?

Additional questions:

Is a private boarding school a ‘functional public authority’ in respect of students whose families pay for their board and education? If a public educational authority pays a private school for a student’s board and education, is the school a ‘functional public authority’ in respect of that student?

• Is education a public function?
• When the student’s parents pay for board and education, is the private school taking on the public role of the state?
• If parents homeschool their children, are they carrying out a public function?
• If a public agency pays for education at a private school, is this the same as the nursing home situation in the YL case?

If my Convention rights are violated in a privatized prison, do I have any remedy against the private prison agency?

• Could you argue that the private prison agency is a ‘hybrid’ public authority (Aston Cantlow v Wallbank [2003] UKHL 37), and that when your Convention rights are violated, the prison is carrying out a public function? 
• Or could you bring a claim in the domestic courts against the public authority that contracted with the private prison agency?
• If either of the above is possible, what remedies could you get before the domestic court?
• A mandatory, quashing or prohibiting order in judicial review?
• A declaration or injunction in judicial review or by way or ordinary action?
• Damages under s 8 Human Rights Act 1998?
• What about the European Court of Human Rights? Could you argue, given the positive obligations of High Contracting parties (states) said to flow from Article 8 ECHR (right to respect for private and family life), that a breach of your Convention rights by a private prison agency amounts to a failure by the UK to fulfil its positive obligation to secure your Article 8 right?
• Consider Mullins v Appeal Board of the Jockey Club (Mullins v McFarlane) [2006] EWHC 986.  Is there scope to argue that you could bring an ordinary claim for a declaration, even if the prison is a purely private body?

The Parliamentary, Health Service, and Local Ombudsmen are subject to judicial review, but private sector ombudsmen (such as pensions ombudsmen or insurance ombudsmen) are not (R v Insurance Ombudsman Bureau and Another, ex p Aegon Life Assurance Limited[1994] COD 426). Why not? Is this rule consistent with Mullins v McFarlane[2006] EWHC 986 (QB)?

• Consider the reasoning in the Aegon case – what was the court’s basis for distinguishing between the reviewable public sector ombudsmen and private sector ombudsmen? Was it that the power of private sector ombudsmen was derived from contract? Was it significant that the court felt that private sector ombudsmen did not exercise ‘government’ functions; they acted more like arbitrators than public investigators?
• As for squaring Aegon and Mullins v McFarlane, remember the principle of all judicial supervision of decision-making: the supervisory jurisdiction should only be used against abuses of power that would otherwise go unremedied.  Would this be the case for decisions of private sector ombudsmen, whose power derives from contract?