I know what you’re thinking – “it’s obvious what quasi-judicial means, it simply refers to decisions which are legal-like in nature not made by a judge”. But the point is we need to have a discussion, in the legal community, of what this really means for reasons which I hope to explain.

So what exactly is “quasi-judicial” about the nature of Jeremy Hunt’s decision making? It’s somewhat reminiscent of that familiar adage about the definition of ‘pornography’ – as “it’s hard to define, but you recognise it when you see it”. And indeed all the “quasi-judicial bodies” on the relevant Wikipedia page do concord with one’s knowledge of what these bodies are. I feel that a lack of settled definition of this really provides for a lack of coherent sensible discussion. The issue is elegantly summarised by Owen Boycott here in the Guardian:

“The secretary of state, however, was allowed to make decisions in a restricted number of cases related to national security, stability of the UK financial system and plurality of the media. In fulfilling what is known as his “quasi-judicial role” – in this case deciding whether to refer News Corporation’s takeover bid for BSkyB to the commission – Hunt insisted in March 2011 that he had been independent.”

I am not an expert in this area, but a keen law student. It’s almost as if the definitions of ‘pseudo-judicial’ and ‘quasi-judicial’ have merged into one. Carl Gardner (@carlgardner), Barrister and former Government lawyer, this morning remarked on Twitter, “If Cameron reveals new guidance for ministers handling “quasi-judicial” decisions, I’ll be really annoyed. For more than one reason #leveson. First, because this wasn’t “QJ” at all. More importantly, it doesn’t matter. Ministers should always exercise their powers fairly #leveson.  And third, ministers shouldn’t and civil servants don’t need new guidance. It’s obvious they can’t act as Hunt & Smith did over Sky #leveson“.

Much of the discussion about whether Jeremy Hunt’s decision was “quasi-judicial” in nature, systematically analysed by Carl Gardner on the “Head of Legal” blog (reference here).  Carl wrote about this back in December 2010:By the way, I don’t think a higher standard applies to Vince Cable because his decision is “quasi-judicial”. Many public lawyers think it’s unhelpful to talk as though there is such a separate broad category of decision short of truly judicial ones, and I agree. The real question is what fairness requires in the context of a particular decision-making process.

“But anyway, if there is a such a thing as a quasi-judicial decision, this ain’t it. It doesn’t involve determining a dispute between competing claims, or making findings of fact, or deciding whether to impose sanctions on anyone. It’s more like a classic policy judgment about what the public interest requires in the context of media ownership, of the sort we elect politicians to take precisely because they have views.”

Carl then specifically Mr Justice Nicol’s judgment in Crosbie v Defence Secretary [2011] at para. 63:

“I acknowledge, though, that there is a powerful line of modern authority which has resisted the categorisation of decision-making into judicial or quasi-judicial on the one hand (where the doctrine of apparent bias does apply) from administrative or other public decisions (where it has no application). Ridge v Baldwin [1964] AC 40 gave momentum to this approach. Anderson itself considered it to be too inflexible an approach to seek to characterise the work of the Army Board as ‘judicial’ or ‘administrative’. In R v Secretary of State for the Environment ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, Sedley J. thought that the principles of apparent bias (at that time expressed by the House of Lords in R v Gough [1993] AC 646) could not be properly confined to judicial or quasi-judicial tribunals but were of general application. His approach appears to have been endorsed by the Court of Appeal in R (Lewis) v Redcar and Cleveland BC [2009] 1 WLR 83 CA. However, if what is now the Porter v Magill test is a general one, the way in which it is applied will vary very much from one context to another. Lewis concerned a decision to grant planning permission. Pill LJ said at [71] that in such a context the importance of appearances was generally more limited than in a judicial context. Rix LJ agreed at [98] and so did Longmore LJ at [113]. In Lewis the Court of Appeal distinguished between councillors having pre-determined views (which was not lawful) from the situation where they had previously espoused policies that favoured (or disfavoured) a particular application. Absent positive evidence of closed minds, the latter would not be unlawful. The Court of Appeal also emphasised the practicality of the matter. It was to be expected that in a democratic system, councillors might well have policies or views on particular matters that would come before them.”

It has struck me how difficult it is to define ‘quasi-judicial nature’ in the law from published cases and journals. However, Mike Granatt, former head of the Government Information Service, provided Justin Webb of the Today programme an extremely clear version of what ‘quasi-judicial’ means (here on the BBC website). This all seems fine – but what is the precise scope of this? Wherever it has been defined by statute, is the definition fit-for-purpose across the full menu of disputes, such as professional regulatory, employment, competition, and so on? How many people make the decision and how? Is there a right to appeal? How is this decision made? Why is the matter in question not being decided by the judiciary? Is the decision legally binding? What happens if there is a breach of this decision?

You can see whatever we are discussing then becomes within the realms of procedural impropriety of judicial review. This is not an academic self-indulgence – it’s a practical legal problem all to do with how we would have known (or not) whether Jeremy Hunt’s ultimate quasi-judicial decision – once delivered – was lawful or not.  We may even be delving into the realms of legitimate expectation, if these grounds of judicial review were relevant to Hunt’s decision-making at all, particularly if any explicit promise had been given by Hunt at any stage (as per O’Reilly v Mackman). It may seem obvious, but it is a discussion that must be had, and it should be evidenced using the correct primary and secondary sources of law, whether they be domestic, European or otherwise. Even in competition cases involving the lower senior courts in our jurisdiction, the word ‘quasi-judicial’ is mentioned, but not actually defined, for example R. (on the application of easyJet Airline Co Ltd) v Civil Aviation Authority Court of Appeal (Civil Division) [2009] (at para. 45). Even frequent reference is given to ‘quasi-judicial’ decision-making in the seminal R. v Panel on Takeovers and Mergers Ex p. Datafin Plc Court of Appeal (Civil Division) [1986], but not actually defined there either.

In the US administrative system in re Trickett, 27 Kan. App. 2d 651, 655-656 (Kan. Ct. App. 2000), “quasi-judicial” is defined as an action by an administrative agency which ascertains certain facts, hold hearings, weigh evidence, make conclusions from the facts as a basis for their official action, and exercises discretion of a judicial nature. This would clearly be different to Jeremy Hunt, and an inner circle of SPADS and other colleagues, producing a decision ‘behind closed doors’.  Carl has instead attempted a definition of “quasi-judicial nature”, through reference to the notion of fairness in administrative law, including Porter v Magill [2002] at para. 103:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

It might therefore be useful for our senior courts here in England to address the precise definition of decision-making of a “quasi-judicial” nature. This is particularly important if LJ Leveson does propose an independent quasi-judicial body to regulate the press, akin to how the General Medical Council regulates doctors, the Solicitors Regulation Authority regulates solicitors, and the Bar Standards Board regulates barristers.