JUDICIAL REVIEW AND THE SACRED COW OF SELF‐REGULATION
| Date | 01 January 1992 |
| Published date | 01 January 1992 |
| DOI | https://doi.org/10.1108/eb024758 |
| Pages | 113-115 |
| Author | JONATHAN MIDDLEBURGH |
| Subject Matter | Accounting & finance |
JUDICIAL REVIEW AND THE SACRED COW OF SELF-
REGULATION
Received: 8th
June,
1992.
JONATHAN MIDDLEBURGH
JONATHAN MIDDLEBURGH
FORMERLY A LECTURER AT THE UNIVERSITY
OF
CHICAGO AND PART-TIME TUTOR IN LAW
AT WORCESTER COLLEGE, OXFORD. THE
AUTHOR IS A BARRISTER. SPECIALISING IN
COMMERCIAL LAW. FINANCIAL SERVICES AND
COMMERCIAL FRAUD. HE HAS A PARTICULAR
INTEREST INJUDICIAL REVIEW AND RELATED
PUBLIC LAW ISSUES.
ABSTRACT
In
recent years there
has been a
series
of
decisions considering
the extent to which
the
self-regidatory
organisations (SROs)
are amenable
to judicial
review.
This
brief-
ing
surveys those
decision and
highlights
the
restrictive
nature of judicial
review
of
SROs. The
author discusses the
reasons for
non-intervention by the courts and
suggests
that the
courts
may
be
paying
too
much deference to
self-regulation.
Since the watermark decision in
Datafin,1 the self-regulatory organisa-
tions (SROs) have been open to judi-
cial review. Paradoxically, however,
while the courts now accept that the
SROs are amenable to judicial
review, they have shown a marked
reluctance to encroach upon their
decision making. This briefing con-
siders two main issues: first, the ext-
ent to which the courts are willing to
police SROs; and second, whether
there is any real justification for
non-intervention.
As to the first issue, it is now
settled law that the High Court has
jurisdiction to police SROs. The
Datafin case (although not concerned
with an SRO 'under the Financial
Services Act 1986) established that
the mere fact that an organisation
was self-regulatory did not prevent
the courts from intervening. The
courts would look at the reality of
the situation. If the SRO was in fact
exercising a public function, its deci-
sions were amenable to judicial
review.
The Datafin decision clarified the
law. That decision made it clear that
the courts would look not only at
the source of a public body's power,
but also at the nature of that body's
powers. Under the formalistic,
source-based, approach, if the source
113
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