JUDICIAL CONTROL OF PUBLIC AUTHORITIES

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JUDICIAL CONTROL OF PUBLIC AUTHORITIES

• Unit 34

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Preview

• Judicial review
• Administrative powers
• Ultra vires
• Delegated and subdelegated legislation
• Grounds for judicial review
• Remedies
• Legal terms
• Exercise

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Judicial review

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

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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

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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

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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

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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

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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

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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

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Ultra vires doctrine

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

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Delegated legislation

• Legislation made under powers conferred by an Act
  of Parliament
• The bulk of delegated legislation - governmental

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Delegated legislation

• 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

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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

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Subdelegated legislation

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

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Subdelegated legislation

• 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

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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

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The mechanism for seeking judicial review

• By making a claim to the Administrative Court

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Judicial review

• Common law grounds on which judicial review may
  be granted
• illegality,
• Irrationality
• Procedural impropriety

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Irrationality

• Public authorities are never empowered to
  exercise their powers irrationally
• Irrational action by a public authority is
  considered to be ultra vires

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Procedural impropriety

• A failure on the part of a public authority to
  act in accordance with the requirements of
  procedural fairness

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Natural justice

• Rules of fair play, originally developed by the
  courts of equity and extended to apply to
  decisions of tribunals and any authority
  exercising administrative power that affects a
  persons status, rights, or liabilities
• Any decision reached in contravention of natural
  justice is void as ultra vires

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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

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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 sides case
• Rules of natural justice provide the minimum
  standard of procedural fairness

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Judicial Review

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

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Remedies

• Direct challenge
• Challenge in collateral proceedings

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Direct challenge

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

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Collateral proceedings

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

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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

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Example

• 2) ignore it and wait for the local authority to
  take enforcement proceedings
• If the person involved 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

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Remedies

• In many circumstances an opportunity to challenge
  an administrative act in collateral proceedings
  will not arrise
• A direct challenge the only possibility

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Legal terms

• Judicial review
• Nadzor nad zakonitošcu sudska kontrola, sudska
  revizija
• Judicial Review Act
• Zakon o vodenju postupka protiv javnih tijela i
  službenika
• Judicial review proceeding
• Upravni spor o zakonitosti odluke

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Legal terms

• Supremacy
• Najviša vlast, nadmoc, primat
• Statutory interpretation
• Zakonsko tumacenje
• Remedy
• Pravni lijek
• By-law
• Podzakonski akt, propis, uredba, lokalni propis

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Legal terms

• Commit an offence
• Pociniti kazneno djelo
• Impugn /impjun/
• Osporiti, opovrgnuti, dovesti u pitanje

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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.

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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.

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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.

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

• 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.

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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.

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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.

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constitutional, constitutionality, forbids,
legislation, sovereignty, state, statutes

• 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

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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