Given the case law to date, SGBs are highly unlikely to be considered amenable to JR without a Supreme Court (“UKSC”) decision overruling Aga Khan.Footnote 48 It is submitted that there is a strong case for such a decision and that the existing line of authority has been a “wrong turn”Footnote 49 in English law. This Part will re-evaluate Aga Khan, criticising the court’s reasoning, drawing on support from analogous English case law and that of other jurisdictions. SGBs perform a public function now more than ever, and so, properly applying the test laid out in Part 2.1, should be amenable to JR.
It is important to establish at the outset that, though the argument herein will refer to SGBs in the abstract, each case would turn on its own facts and it is likely that some SGBs would be more readily susceptible to JR than others.Footnote 50 However, given the fundamental similarities between the position and powers of SGBs, and the broad government interest in sport as a whole, it is legitimate to predicate the argument on the basis that they would generally be treated alike.
Re-evaluating Aga Khan
The argument for overruling Aga Khan rests on two main propositions: that it places too much weight on the source of SGB power and fails to appreciate its public flavour—something which has become more pronounced in subsequent years. These central strands of argument shall be considered in turn, though it is impossible to separate them entirely.
The source of the power
Firstly, it is argued that Aga Khan focuses too much on the source of the powers of SGBs, as opposed to their function, which sits uncomfortably with the decision in Datafin and subsequent authorities.Footnote 51 The court emphasised that JR was unavailable because the source of the power was a consensual, contractual relationship between the parties. However, this approach fails to recognise the true nature of the relationship between participants and SGBs, as well as the nature of SGB power.
The “contract” is fictional
To describe the relationship between a participant and an SGB as purely contractual is artificial and unrealistic. SGB regulations bind participants regardless of any express contract and may even preclude individuals participating altogether.Footnote 52 In Modahl v British Athletics Federation,Footnote 53 the CA held that there are three ways in which a contractual link can be established between an SGB and an athlete: the “club basis” (a chain of mutually interdependent contracts starting with an employment contract with a sports club in which the athlete agrees to be bound by the SGB regulations), the “participation basis” (a contract is implied by virtue of the athlete’s participation under the regulations) or the “submission basis” (a contract is implied by virtue of the athlete’s submission to the SGB’s regulatory procedures).Footnote 54 Though there will be exceptions,Footnote 55 in the archetypal case, there is no express contract with the SGB. Indeed, in Modahl, Parker LJ dissented, considering there to be no real intention to create legal relations, nor any consideration to speak of.Footnote 56
As Lord Denning MR observed in Enderby Town FC v Football Association,Footnote 57 this “contract” is simply a “fiction created by the lawyers to give jurisdiction”.Footnote 58 It is necessary for the effective administration of sport,Footnote 59 as there is no statutory scheme by which to otherwise enforce the rules. SGBs, as argued below, are de facto public bodies: it is simply an accident of history that they must rely on the contractual jurisdiction. Using a fiction created to increase oversight of SGBs to now deny such oversight via JR lacks common sense—the law should be “mature enough” to “do away with” such fictions.Footnote 60
The lack of genuine consent
There is also a lack of genuine consent to SGBs’ jurisdiction, undermining further the argument against JR in Aga Khan. Each SGB has its own set of regulationsFootnote 61 which cover an incredibly broad array of issues including discipline, doping, intermediaries, corruption, betting, safety, safeguarding, player licensing, eligibility, transfers, club ownership and finance, as well as the rules of the sport itself. They are even able to limit freedom of expression.Footnote 62 As Lord Denning MR observed, such regulations are, in reality, a “legislative code”Footnote 63 going far beyond a contractual regime. They regulate an entire sphere of conduct, both commercial and personal, and give SGBs the enormous power to impose sanctions which can range from 1-week suspensions, to lifetime bansFootnote 64 as well as points deductions, fines, or even relegation.
Enormous power alone, though, is insufficient to undermine the purported contractual relationship. Freedom of contract is a fundamental feature of English contract law, and, as such, parties are free to agree to all these things. The key point, however, is that there is no “agreement” in the true sense of the word—these are rules which are imposed rather than consented to.
One might argue this is true of most contracts entered into in the modern day—for example, employment or consumer contracts. However, the enormous power of SGBs is doubly significant because they hold a monopoly. As such, participants are in an incredibly weak position and have no choice but to accept the regulations.Footnote 65 This is ultimately “Hobson’s choice”—terms are imposed on a “take it or leave it” basis, and the latter is no option at all. By contrast, in the employment and consumer contexts, there will ordinarily be other job opportunities and other products to buy in the market.Footnote 66 In such monopolistic circumstances, “consensual submission” provides no basis on which to exclude JR,Footnote 67 as there is no genuine consent.
This argument was rejected by Farquharson LJ in Aga Khan. He suggested that the “reality of the consent” was not undermined, as the imposition of rules was necessary for the administration of sport.Footnote 68 The latter is certainly true, so it would be dangerous to suggest that there is insufficient consent for the “contract” to be binding, but it must nonetheless be recognised that the consent is artificial.Footnote 69 The court here took an “unusually two-dimensional view”Footnote 70 which is particularly unsatisfactory because “when genuine consent is absent, this is precisely when abuse of power is most likely, and judicial protection most needed”.Footnote 71 The court should instead have focused on the unavoidability of submission to the decision-maker.Footnote 72
Farquharson LJ’s view was echoed by the CA in Stretford v Football Association,Footnote 73 but the European Court of Human Rights recently took a different approach,Footnote 74 holding that an arbitration clause enclosed in an SGB’s regulations had not been agreed in a “free and unambiguous manner”Footnote 75 and, thus, the athlete’s rights under Art.6(1) ECHR had not been validly waived. Though this was a human rights case, it nevertheless recognised that consent to SGB regulations is not real—a decision English courts will have to take into account.Footnote 76
Should consent preclude judicial review?
It is also arguable that the reasoning in Aga Khan is unsound because it could be applied to all forms of voluntary activity subject to a statutory licensing regime.Footnote 77 It could be said that an applicant to a statutory licensing authority “voluntarily” submits to its jurisdiction, as they could choose not to engage in the relevant activity. Of course, in such cases, “consensual submission” would not preclude JR. Nor should it for SGBs.
That said, Sir John Donaldson MR said in Datafin that “bodies whose sole source of power is a consensual submission to its jurisdiction” (emphasis added) will be excluded from the scope of JR.Footnote 78 Consensual submission is not a statutory licensing authority’s sole source of power. However, the same is arguably true of SGBs, as they wield de facto public power—power which is impliedly devolved, or perhaps even expressly derived, from government, as explained below.
Indeed, the source of the power cannot be fully separated from the nature of the power. The dicta in Datafin properly suggest that where a body is exercising a public function, there will not be a purely contractual relationship—the very publicness of the power means that public law is applicable, regardless of any contract.Footnote 79
Given the fictional nature of the “contract” and the artificiality of the consent to SGBs’ jurisdiction, placing such weight on the source of the power as the court did in Aga Khan is inappropriateFootnote 80—particularly when the modern test for amenability requires a more functional approach, and the existence of a contract has been held not to be fatal to JR claims in subsequent decisions.Footnote 81 SGBs’ power may formally be predicated on contract, but the reality is that they are performing a public function.
Satisfying the public function test
Having established that there should be no contractual and/or consensual bar to an application for JR against an SGB, it can now be argued that SGBs should be amenable to JR because they satisfy the public function test set out in Part 2.1. Though there has always been a strong case for SGBs satisfying this test,Footnote 82 it has now become irrefutable owing to the change in government policy, which allows the missing “governmental” element to be found.
The enormous public interest in sport gives it great potential as a government policy tool to achieve social and political objectives, and it is undoubtedly used to promote national standing.Footnote 83 Indeed, throughout modern history, sport has been used as a bargaining tool in international relations.Footnote 84 This immediately suggests a public element, but more specific arguments can be made. These arguments are ones which have often been put forward, but it is submitted that the wider context has changed such that they can now be made more forcefully.
The “But For” argument
Firstly, it is submitted that, but for the work of SGBs, the government—owing to its direct interest in sport and its governance—would itself be driven to regulate sport, demonstrating that SGBs are, in reality, carrying out a public function. This is a test frequently used to determine amenabilityFootnote 85 but was answered in the negative in Aga Khan,Footnote 86 endorsing the view of Rose J in R v FA, ex p Football League:
I find no sign of underpinning directly or indirectly by any organ or agency of the State or any potential government interest…nor is there any evidence to suggest that if the FA did not exist the State would intervene to create a public body to perform its functions.Footnote 87
With respect, it is suggested that such views are out of date and merit reconsideration. The government today has a clear, direct interest in sport,Footnote 88 and there is plenty to suggest that, in the absence of SGBs, they would intervene.
In the first decade of the twenty-first century, Exchequer funding of sport reached unprecedented levelsFootnote 89 and, in 2002, sport was properly recognised in government, as a key policy objective of the Department for Digital, Culture, Media and Sport (“DCMS”).Footnote 90 The DCMS is now primarily responsible for administering public sports policy, albeit at arm’s length via several non-departmental public bodiesFootnote 91 (“NDPBs”), including Sport England and UK Sport. The traditional view that “‘the government does not and should not run sport’ no longer reflects the complexities of modern sports policy”,Footnote 92 nor the reality of its implementation in the UK.
The 2015 DCMS “Sporting Future” policy paper gave some telling indications of the government’s direct interest in sport, setting out the government’s strategy of “harnessing the power of sport for the good of our whole society”,Footnote 93 emphasising sport’s personal, economic and social impact. Sport’s role in the pursuit of public health goals is significant,Footnote 94 and SGBs are often key to implementing such policy.Footnote 95
In addition, as the 2015 paper announced, government agencies Sport England and UK Sport have developed a new Code for Sports Governance setting out the levels of “transparency, accountability and financial integrity” required of SGBs seeking public funding.Footnote 96
Furthermore, the DCMS Committee (“DCMSC”)Footnote 97 has conducted detailed enquiries into matters of concern within sport, including homophobia,Footnote 98 women and sport,Footnote 99 match-fixing in tennisFootnote 100 and, currently, sports governance more broadly.Footnote 101 The DCMSC’s very existence demonstrates a government interest in sport, but the nature of its enquiries reveals a particular desire to ensure accountability. This is perhaps best exemplified by its 2018 “combatting doping in sport” report which followed an intrusive and very public enquiry, centred around British Cycling.Footnote 102
Indeed, the government is particularly concerned with anti-doping. In 2003, the UK government signed the Copenhagen Declaration on Anti-Doping in Sport, in which they agreed to formally recognise and implement the World Anti-Doping Code (“WADC”) and, in 2006, ratified the International Convention against Doping in Sport. Moreover, the government showed its dedication to the anti-doping movement by creating the UK Anti-Doping agency in 2009, another NDPB. It is responsible for the sample collection, testing and whereabouts programmes of the majority of UK athletes. By funding an anti-doping programme and by signing up to internationally agreed anti-doping objectives, the government seeks to promote fair and clean sport, further highlighting its direct interest.
A further example of government expansion into sport has been in the field of anti-corruption. The Gambling Commission—another NDPB—created the Sports Betting Intelligence Unit (“SBIU”) in 2005 to monitor gambling and uphold integrity in sport, while s.42 of the Gambling Act 2005 was introduced by the government specifically to target match-fixing.Footnote 103 Section 42 makes it a criminal offence to “cheat at gambling”,Footnote 104 which includes interference with a sporting event to which the gambling relates.Footnote 105
More recently, in 2014, the government published the UK Anti-Corruption Plan, which set out a cross-governmental approach to tackle corruption, including specific measures addressing corruption in sport. Principal among these was the Sport and Sports Betting Integrity Action Plan, launched by the Gambling Commission in 2015, which delineates the responsibilities of, inter alia, SGBs and government in combatting corruption. Such an initiative is yet another example of how the government’s interest and involvement in sport has grown since the early 1990s.
There is thus a strong argument that “but for” SGBs, the government would be driven to regulate sport itself, such is its interest in the sector. SGBs are therefore exercising a public function.
The “Interwoven” argument
Moreover, as required by the courts in Datafin and Aga Khan, SGBs are “woven into the fabric of public regulation”.Footnote 106
For example, the role of administering anti-doping rules is not exclusive to UKAD. All SGBs adopt the WADC into their own regulations and assume responsibility, along with UKAD, for its implementation. Indeed, it is often the SGBs themselves that act as prosecutor in doping cases and who are responsible for enforcing bans imposed by the National Anti-Doping Panel.
Much the same point can be made with regard to anti-corruption. Working closely alongside the police and the SBIU, SGBs have taken a proactive role in the fight against corruption.Footnote 107 All major SGBs have extensive anti-corruption regulationsFootnote 108 aimed at deterring and punishing conduct which is corrupt, or potentially so, through sporting sanctions. While not all conduct punished by SGBs is also criminal, the most serious cases will be and, by implementing such comprehensive regulations, SGBs play an important role in preventing criminal behaviour.
However, SGBs’ jurisdiction does not cover those who may be involved from outside of sport in corruption and, thus, an effective approach to tackling the problem requires cooperation with, inter alia, law enforcement agencies and government.Footnote 109 As aforementioned, this joined-up approach is explicitly recognised in the Sport and Sports Betting Integrity Action Plan, which imposes certain requirements on each of the key stakeholders, including the Gambling Commission—a government agency. In this context, too, SGBs are therefore woven into the fabric of public regulation.
Moreover, the SGBs of sports such as rugby, football, boxing and other contact sports have exclusive jurisdiction over an area which would ordinarily be governed by the criminal law. Following R v Barnes,Footnote 110 violent conduct in the sporting arena is exempted from criminal sanction, as long as it remains within reasonable bounds of the rules. As such, these SGBs fulfil the function of policing those bounds by ensuring that violent conduct in breach of the rules is sanctioned appropriately. In other words, a jurisdiction is carved out of the criminal law for certain SGBs. This specific function has strong public flavour in itself, given the otherwise public nature of the sanctions the conduct would attract, and it is also an example of how SGBs are woven into public regulation.
Indeed, this is highlighted explicitly in the memorandum of understanding between the FA, FAW, the Crown Prosecution Service and the Association of Chief Police Officers.Footnote 111 It recognises that there are often situations in which football’s SGBs will have concurrent jurisdiction with law enforcement agencies and sets out the terms of their cooperation in relation to both investigating and sanctioning.
A further example is the statutory regulation of football hooliganism, which was the culmination of prolonged efforts by the government, in combination with the police and football’s SGBs, to gain control of the issue.Footnote 112 For the offences under the Football (Offences) Act 1991 to be made out, or for a Football Banning Order to be imposed under the Football Spectators Act 1989, the match with which the relevant conduct is connected must be a “designated” football match—ultimately, a game under the authority of the SGBs.Footnote 113 In this regard, football’s SGBs are inextricably integrated into governmental regulation.
Of course, these latter examples are confined to certain sports and as such can only advance the argument insofar as those specific SGBs are concerned. However, there is strong evidence of a more general integration of SGBs into the public sphere and, in any event, as noted above,Footnote 114 it may be that certain SGBs are more susceptible to JR than others.
Implied devolution of power
One might nonetheless argue that the government has still abstained from directly intervening in day-to-day sports regulation; it is left to private bodies and as such falls properly within the private sector. Indeed, in 2018, the government rejected a petition to create an independent regulator for English football, on the basis that the existing authorities do a satisfactory job, negating any need or desire to create a government body.Footnote 115 Government:
believes sports are best governed by modern, transparent, accountable and representative governing bodies, able to act decisively in the long-term interest of each sport and its participantsFootnote 116
However, this reflects an implied devolution of governmental power. By actively choosing not to legislate in this field, owing to its satisfaction with the work of the FA, the government is impliedly granting the SGB power to continue regulating football, in the same way that Lloyd LJ considered the panel in Datafin to be operating.Footnote 117 The same can be said of many SGBs, though there isn’t such explicit evidence. The government has a strong interest in sport’s regulation, but, due to their expertise and natural independence, it considers existing SGBs better-placed to perform that function and thus, far from abstaining, gives them implied authority to continue doing so. That sport is administered by private bodies is simply an accident of history.Footnote 118
In any event, SGBs’ receipt of public funding, via Sport England and UK Sport, suggests that their power may be somewhat derived from government expressly.
Finally, the “massive public interest in sport”Footnote 119 plays a role in creating public flavour. The fact that sport can affect people’s lives in so many ways, as fans, participants and aspiring participants, means that the public at large has an interest in its good governance. Though “public interest” has been considered distinct from “public law”,Footnote 120 it is suggested that the two can be linked. Public interest affects government decision-making and ultimately drives public policy. As such, an area of significant public interest is almost inevitably an area of government interest, such that its regulation will have public flavour. Sport is one such area.
Moreover, all SGBs act, or at least purport to act, in the public interest.Footnote 121 They commonly cite as their object the promotion and growth of the sport throughout their territory.Footnote 122 This may include commercialisation, but the primary objective remains the development of the sport itself, which is in the public interest. SGBs thus perform a function which is “other-regarding”Footnote 123—something typical of government—which might further suggest that a public function is being exercised.Footnote 124
There are thus multiple ways to demonstrate that SGBs wield de facto public power. Undeniably, as the sports industry has grown exponentially over the past two decades, so has the government’s interest in it. In Aga Khan, Hoffman LJ considered that the English legislator’s attitude to racing was “akin to its attitude to religion…something to be encouraged but not the business of government”.Footnote 125 This statement can no longer hold true. Aga Khan merits reconsideration: SGBs are performing a public function.
Supporting case law
The argument premised herein is not altogether unsupported by English case law. Indeed, in Aga Khan itself, Farquharson LJ refused to “discount the possibility that in some special circumstances the remedy might lie”,Footnote 126 while Lord Woolf MR similarly left the possibility open in Wilander v Tobin (No. 2).Footnote 127 It is suggested that the new-found governmental element provides such special circumstances.
In R v Jockey Club, ex p RAM Racecourses,Footnote 128 Brown J held that he would have allowed JR of the Jockey Club but for the fact that he was bound by the decision in Law. He considered the function of regulating a sport “strikingly akin to the exercise of a statutory licensing power” and, as such, had “no difficulty in regarding it as one of a public law body”.Footnote 129 The court in R v Disciplinary Committee of the Jockey Club, ex p Massingberg-MundyFootnote 130 considered itself similarly bound, but otherwise would have allowed JR. More recently, in Jockey Club v Buffham, Gray J described the Jockey Club as a “public authority in every sense”.Footnote 131 The Jockey Club—no longer the regulator of horseracing in Britain—was no different in its role and powers than other SGBs.
Support can also be derived from the “borderline cases”, particularly those in which “self-regulatory bodies” have been held amenable to JR. For example, the Advertising Standards Authority (“ASA”)Footnote 132 and the former Press Complaints CommissionFootnote 133 have been considered to be subject to JR, as has the Code of Practice Committee of the British Pharmaceutical Industry (“CPC”).Footnote 134 All are/were private, self-regulatory organisations without any statutory basis but which regulate(d) important parts of public life and were woven into the fabric of public regulation.
Indeed, in R v Advertising Standards Authority Ltd, ex p Insurance Service plc,Footnote 135 Glidewell LJ, in holding that the ASA was subject to JR, said:
The Authority has no powers granted to it by statute or at common law, nor does it have any contractual relationship with the advertisers whom it controls. Nevertheless it is clearly exercising a public law function which, if the Authority did not exist, would no doubt be exercised by the Director General of Fair Trading.
For the reasons outlined in Part 3.1, it is argued that SGBs are analogous.
In Professional Counselling Aids,Footnote 136 Popplewell J reluctantly found the CPC amenable to JR, emphasising that Datafin had “enlarge[d] enormously”Footnote 137 the scope of JR and placing reliance on the decision in Insurance Service. The latter was endorsed specifically in Aga Khan.Footnote 138
Likewise, the Bar Council was held reviewable in R v General Council of the Bar, ex p PercivalFootnote 139, a body “empowered by its rules to prosecute [complaints] before the disciplinary tribunal as an adjudicating body exercising powers delegated by the judges”.Footnote 140 The Council has an important role in regulating the Bar—a field in which the government certainly has an interest, given the way barristers affect the determination of individuals’ fundamental rights. But for the Bar Council it seems incredibly likely that a statutory authority—like the Solicitors Regulatory Authority—would be created. SGBs perform a similar role, regulating an area of government interest and quasi-judicially determining fundamental rights.
Furthermore, parallels can be drawn between the position of SGBs and the limited company subjected to JR in Beer. In the same way that Hampshire Farmers Markets Ltd. regulated access to a market in which there was significant public interest, so too do SGBs. Indeed, the market to which SGBs regulate access is an awful lot larger, as it operates at national level.
More recently, the Independent Press Standards Organisation (“IPSO”), which is one of several independent regulators of the UK press, was subjected to JR.Footnote 141 Though the court did not formally decide the jurisdictional point, Warby J allowed JR to proceed in spite of the fact that IPSO has not been recognised by the statutory Press Recognition Panel and his own recognition that “the argument against IPSO decisions being amenable to [JR] is stronger than it was in the case of the Jockey Club”.Footnote 142 Though it operates in the public interest, IPSO does not operate a monopoly and the court doubted that government would step in if it did not exist, as the Leveson Report did not recommend state regulation of the press.Footnote 143 This might be seen as a further enlargement of the scope of JR which, in fact, goes beyond SGBs.
Therefore, allowing JR of SGBs would not be at odds with existing case law and would, in fact, make it more coherent—that they are not considered amenable is anomalous.
The comparative argument
It is also relevant that other jurisdictions have recognised the public function of SGBs. In French law, sports disciplinary sanctions are classed as administrative acts which can therefore only be reviewed by the administrative courts,Footnote 144 while in Spain the public nature of sport is recognised in constitutional lawFootnote 145 and there is a specific administrative court dedicated to resolving sports regulatory disputes.Footnote 146
Turning to other common law jurisdictions, the High Court of Australia allowed JR of an SGB in Forbes v NSW Trotting Club,Footnote 147 where the function of controlling the sport—“a public activity”—was considered significant. The same position has been reached in New Zealand,Footnote 148 Canada,Footnote 149 South AfricaFootnote 150 and, albeit to a limited extent,Footnote 151 the USA.Footnote 152 The English position thus appears to be an anomaly, “unjustifiably lagging behind its Commonwealth counterparts”.Footnote 153
The argument here runs deeper than simply saying “they do it, so we should do it”. The crucial point is that these jurisdictions have recognised the public flavour of SGBs: they have recognised why SGBs properly fit into the public sphere. SGBs have much the same role and powers world over, so it appears incongruous that English law is asking the same question and getting a different answer. This is particularly significant as regards the other common law jurisdictions, as the principles at play are broadly the same. That England is the odd one out is telling.
Most concerning perhaps is that JR of SGBs has long been available in Scotland.Footnote 154 Of course, Scots law does not distinguish between public and private law in the same way as English law, which may account for the different result, but it nonetheless sits uncomfortably given the geographical proximity of the jurisdictions. Indeed, in some sporting contexts, athletes from the two jurisdictions compete together, under a single SGB.Footnote 155 It was held in Lennox v British Show Jumping AssociationFootnote 156 that such bodies would be reviewable in Scotland. This results in “forum shopping”,Footnote 157 whereby a party will simply seek to claim in the most favourable jurisdiction. Such inconsistencies are unsatisfactory and, for example, could lead to the situation whereby athletes of the same nationality, in the same sport, might have differing legal remedies available to them simply because of the team/SGB of which they are a member.
The fact that so many other jurisdictions have recognised the public flavour of SGBs certainly makes Aga Khan appear anomalous. However, Hoffman LJ was not drawn by comparative arguments:
different countries draw the line between public and private regulation in different places. The fact that certain functions of the Jockey Club could be exercised by a statutory body and that they are so exercised in some other countries does not make them governmental functions in England.Footnote 158
While it is certainly true that different jurisdictions approach the public/private divide differently, comparative analysis in this field has particular value. The sports industry is truly international: athletes from England and Wales regularly compete against athletes from other jurisdictions and the fact that foreign athletes can access JR might give them an advantage—as explained in Part 4—which adds to the case for JR. It is surely desirable to enhance consistency in international sports law generally, especially when there are good, principled reasons for doing so. To do so is in the interests of both the administrators and participants of sport globally.
The court’s approach in Aga Khan is out of date, and it is time to follow our Commonwealth counterparts.
To what extent?
Having argued that SGBs should be amenable to JR, it is important to consider to what extent they would be so. For an application for JR to succeed, not only must the body be susceptible to JR, but so must the specific decision in question.Footnote 159 A public body in the modern day exercises many functions, some of which will not be “public”—such as entering employment contracts—and these will not be judicially reviewable.Footnote 160
SGBs similarly perform a multitude of functions. Many operate their national team and, as such, undertake an array of commercial tasks such as negotiating sponsorship and paying players. Such purely commercial functions would be outside the scope of JR. It is only the regulatory function of SGBs which should be reviewable—only in this regard can their function be described as “public”.