JUDICIAL CONTROL OF PUBLIC AUTHORITIES

Unit 34

Judicial review

A review by a higher court of the actions of a lower court or of an administrative body

Judicial Review

The principle means by which the High Court exercises supervision over public authorities in accordance with the doctrine of ultra vires

The power of the High Court to exercise judicial review – supervisory jurisdiction

Administrative powers

powers of an executive nature conferred by legislation on government ministers, public and local authorities etc. for the purpose of giving effect to broadly defined policy

Administrative powers: examples

Powers to acquire land compulsorily, to grant or refuse licenses, to determine the precise nature and extent of services to be provided

Administrative powers

in every sphere of public administration: town and country planning, regulation of public health, environmental matters, welfare services, control of trades, professions and other activities

Their exercise – subject to judicial control by means of the doctrine of ultra vires

Ultra vires

“beyond the powers” An act by a public authority, company, or

other body that goes beyond the limits of the powers conferred on it

Ultra vires acts: invalid

Ultra vires

The exercise of administrative power is ultra vires not only if unauthorized in substance, but equally if it is procedurally irregular, improperly motivated, or in breach of the rules of natural justice

Ultra vires doctrine

Applies to all powers, whether created by statute or by a private document or agreement (trust deed, contract of agency)

In the field of public (administrative) law governs the validity of all delegated and subdelegated legislation

Delegated legislation

Legislation made under powers conferred by an Act of Parliament

The bulk of delegated legislation - governmental

Also: made by a variety of bodies outside central government, e.g. by-laws, the Rules of the Supreme Court, codes of conduct of professional bodies

By-law

A form of delegated legislation made principally by local authorities

Not subject to any form of parliamentary control but take effect if confirmed by a government minister

Subject to judicial control by means of the doctrine of ultra vires

Subdelegated legislation

Legislation made under powers conferred by delegated legislation or by subdelegated legislation itself

The parent Act authorizes a minister to make regulations and these in turn authorize others to make orders

Not subject to parliamentary control but subject to judicial control by means of the doctrine of ultra vires

Ultra vires

Delegated and subdelegated legislation is ultra vires not only if it contains provisions not authorized by the enabling power but also if it does not comply with any procedurel requirement regulating the exercise of the power

Ultra vires doctrine

Governs the validity of decisions made by inferior courts or administrative or domestic tribunals and the validity of the exercise of any administrative power

Ultra vires

Acts by a registered company are ultra vires if they exceed the objects clause of the memorandum of association

The mechanism for seeking judicial review

By making a claim to the Administrative Court

Common law grounds on which judicial review may be granted:

illegality, Irrationality Procedural impropriety

Irrationality

Public authorities are never empowered to exercise their powers irrationally

Irrational action by a public authority is considered to be ultra vires

Procedural impropriety

A failure on the part of a public authority to act in accordance with the requirements of procedural fairness and in compliance with the common-law rules of natural justice

Natural justice

Rules of fair play, originally developed by the courts of equity and extended to apply equally to decisions of administrative and domestic tribunals and any authority exercising administrative power that affects a person’s status, rights, or liabilities

Any decision reached in contravention of natural justice is void as ultra vires

Rules of natural justice

Rule against bias (nemo iudex in causa sua): any decision is invalid if made by a person with any financial or any other interest in the outcome or any bias that might affect his impartiality

Rules of natural justice

Audi alteram partem: hear the other side A decision cannot stand unless the

person affected by it was given a fair opportunity both to state his case and to know and answer the other side’s case

Rules of natural justice provide the minimum standard of procedural fairness

Judicial Review

May be used to challenge action by public authorities that is incompatible with the European Convention on Human Rights

Results

If the claim for judicial review is successful, the court may grant:

Quashing order Mandatory order Prohibiting order Declaration injunction

Quashing order

An oder obtained by an application for judicial review in which the High Court orders decisions of inferior courts, tribunals and administrative authorities to be brought before it and quashes them if they are ultra vires or show an error of law (certiorari)

Quash

To invalidate a conviction made in an inferior court or to set aside a decision subject to judicial review

Mandatory order

An order available on application for judicial review from the High Court, requiring an inferior court, tribunal or other public body to perform a specific duty relating to its responsibilities (mandamus)

Prohibiting order

An oder obtained by an application for judicial review in which the High Court orders decisions of inferior court, tribunal or public authority not to carry out an ultra vires act

Declaration

A remedy involving a finding by the High Court as to a person’s legal status, rights, or obligations

Cannot be directly enforced The applicant must show standing, i.e.

that the issue affects him directly

Injunction

A remedy in the form of a court order addressed to a particular person that either prohibits him from doing a certain act or orders him to carry out a certain act

Remedies

Direct challenge Challenge in collateral proceedings

Direct challenge

To impugn some act of the administration, or in the case of failure to act, to require action to be taken

Collateral proceedings

The purpose of the proceedings is different and the validity of the administrative act arises incidentally

Example

A local authority makes a by-law that is thought to be invalid: two choices

1) to go to court and ask to have it declared invalid (direct challenge),

or:

Example

2) ignore it and wait for the local authority to take enforcement proceedings

If he is charged with a breach of the by-law, he can claim that it is invalid

The court will have to determine its validity before it can decide whether he has committed an offence

Remedies

In many circumstances an opportunity to challenge an administrative act in collateral proceedings will not arrise

A direct challenge – the only possibility

Legal terms

Judicial review Nadzor nad zakonitošću; sudska

kontrola, sudska revizija Judicial Review Act Zakon o vođenju postupka protiv protiv

javnih tijela i službenika Judicial review proceeding Upravni spor o zakonitosti odluke

Legal terms

Supremacy Najviša vlast, nadmoć, primat Statutory interpretation Zakonsko tumačenje Remedy Pravni lijek By-law Podzakonski akt, propis, uredba, lokalni propis

Legal terms

Commit an offence Počiniti kazneno djelo Impugn /im’pju:n/ Osporiti, opovrgnuti, dovesti u pitanje

Fill in the missing words: annul, constitution,

executive, governmental, Judicial, judiciary, jurisdictions, procedure, separation

___review is the power of the courts to___ the acts of the _____ and/or the legislative power where it finds them incompatible with a higher authority, such as the terms of a written___. Judicial review is an example of the functioning of ____of powers in a modern governmental system (where the ___ is one of several branches of government). This principle is interpreted differently in different___, which also have differing views on the different hierarchy of ___norms. As a result, the ___ and scope of judicial review differs from country to country and state to state.

Key

Judicial review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher authority, such as the terms of a written constitution. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of several branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

administrative, courts, delegated, disputes, governmental, implemented, public, review

Most modern legal systems allow the courts to review ___acts, i.e. individual decisions of __body, e.g. a decision to grant a subsidy or to withdraw a residence permit. Certain ___systems, most notably in France and Germany, have ___a system of administrative___, that are charged exclusively with deciding on ___between the members of the public and the administration. In other countries, e.g. the United Kingdom and the Netherlands, judicial __is carried out by regular civil courts, although it may be ____ to specialized panels within these courts, such as the Administrative Court within the High Court of England and Wales.

Key

Most modern legal systems allow the courts to review administrative acts, i.e. individual decisions of public body, e.g. a decision to grant a subsidy or to withdraw a residence permit. Certain governmental systems, most notably in France and Germany, have implemented a system of administrative courts, that are charged exclusively with deciding on disputes between the members of the public and the administration. In other countries, e.g. the United Kingdom and the Netherlands, judicial review is carried out by regular civil courts, although it may be delegated to specialized panels within these courts, such as the Administrative Court within the High Court of England and Wales.

constitutional, constitutionality, forbids, legislation, sovereignty, state, statutes In American legal language, the term "judicial review" usually

refers to the review of the ___of legislation by both federal and ___courts, such as the Supreme Court of the United States. However, many legal systems specifically do not allow any review of primary___, passed by parliament. In the UK, ___cannot be set aside under the doctrine of parliamentary. ___Another example is the Netherlands, where the Constitution expressly ___the courts to rule on the question of constitutionality of primary legislation.Many countries whose constitutions do provide for a review of primary legislation on compatibility with the constitution, have established special ___courts that have the exclusive authority to deal with this issue

Key

In American legal language, the term "judicial review" usually refers to the review of the constitutionality of legislation by both federal and state courts, such as the Supreme Court of the United States. However, many legal systems specifically do not allow any review of primary legislation, passed by parliament.

In the UK, statutes cannot be set aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands, where the Constitution expressly forbids the courts to rule on the question of constitutionality of primary

legislation.Many of the countries whose constitutions do provide for a review of primary legislation on compatibility with the constitution, have established special constitutional courts that have the exclusive authority to deal with this issue