Judicial control of public authoritiesAPRIL 8, 2015

Public authoritiesUK

government departments, legislative bodies, and the armed forces

local government

National Health Service

maintained schools and further and higher education institutions

police

publicly owned companies

other public bodies

USA

historically, public corporations chartered by a state designed to perform some public benefit

is a type of public-benefit corporation that takes on a more bureaucratic role, such as the maintenance of public infrastructure, that often has broad powers to regulate or maintain public property

the power to create these corporations is largely left to states (except US government agencies)

Appeal or judicial review? difference:

-on appeal, the court can substitute the decision of the administrative body with its own

- in judicial review, the court is only concerned with the legality of the decision under review and it can make it void or annul (the administrative body can then reconsider the decision)

Judicial review

the doctrine under which legislative and executive actions are subject to review by the judiciary

one of the checks and balances in the separation of powers that allow one branch to limit another

the doctrine varies between jurisdictions (common law v civil law; separation of powers v legislative supremacy)

COMMON LAW V CIVIL LAW

common-law judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid

civil-law judges are seen as those who apply the law, with no power to create or destroy legal principles

SEPARATION OF POWERS V LEGISLATIVE SUPREMACY no branch of government should be able to exert power over any other branch without due process of law

the legislative body has absolute sovereignty, and is supreme over all other government institutions, including executive or judicial bodies

Types of judicial review 1. Judicial review of administrative acts

A) review of administrative acts (individual decisions of a public body)

B) review of secondary legislation (legally enforceable rules of general applicability adopted by administrative bodies)

carried out by administrative courts (Croatia, Germany France…); regular civil courts, although it may be delegated to specialized panels within these courts (the Administrative Court within the High Court of England and Wales, The Netherlands);

the United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals

2. judicial review of primary legislation (laws passed directly by elected legislature)

A) not permitted under the doctrine of parliamentary sovereignty (The UK, The Netherlands)

B) carried out by general courts (in the USA, federal and state courts are able to review and declare the "constitutionality" (or lack thereof) of legislation that is relevant to any case properly within their jurisdiction); however, judicial review refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States)

C) carried out by a specialized court (Constitutional Court; Croatia, Germany, Austria…)

Judicial review in England and Wales a procedure in English administrative law by which the courts supervise the exercise of public power on the application of an individual

a person who feels that an exercise of such power by a government authority, such as a minister, the local council…, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court for judicial review of the decision

Grounds for judicial review 1. illegality

- decision made by the wrong person

- error of law or error of fact occurred

- decision maker went beyond their power (ultra vires)

2. irrationality

- a decision is irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it”

- unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded

3. procedural impropriety

- a decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the 'rules of natural justice' have not been adhered to

an Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry

the rules of natural justice require that the decision maker approaches the decision making process with 'fairness'

Remedies can be obtained:

1. by direct challenge

- the object of the proceedings is to impugn an act of administration or to require an action be taken

2. by challenge in collateral proceedings

- the object of the proceedings is something else and the question of validity of an administrative act arises incidetally

Example a local authority makes a by-law that is thought to be invalid

options:

a) a person can go to court and ask to have it declared invalid (direct challenge)

b) a person can ignore it and wait to be charged with a breach of the by-law when he can claim that the by-law is invalid and the court will first have to determine the validity of the by-law before deciding on the allegend offence (challenge in collateral proceedings)

Remedies quashing order

- nullifies a decision which has been made by a public body making it completely invalid

- usually made where an authority has acted outside the scope of its powers (‘ultra vires’).

prohibiting order

-similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers

- however, a prohibiting order acts prospectively by telling an authority not to do something in contemplation

mandatory order

- compels public authorities to fulfill their duties

declaration

- a judgment by the Administrative Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order

injunction

- an order made by the court to stop a public body from acting in an unlawful way

Judicial review in the USA the ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution

the U.S. Constitution does not explicitly define a "power" of judicial review, but the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution

Hylton v. United States (1796)

Marbury v. Madison (1803)

Hylton v. United States (1796) the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress (the Carriage Act of 1794 which imposed a "carriage tax”)

the Court engaged in the process of judicial review by examining the plaintiff's claim that the carriage tax was unconstitutional

in choosing to uphold the tax, the Court exercised judicial review, although they refrained from overturning the statute

Marbury v. Madison (1803) the first Supreme Court case where the Court asserted its authority for judicial review to strike down a law as unconstitutional

at the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution

Vocabulary to act outside the scope of powers

to adhere to rules

to apply to court for simething

to be subject to review

to exert power over something or somebody

to look at the merits of a decision

to overturn a law

to prescribe by statute

to strike down a law

adjudication

checks and balances

constitutionality

declaration

injunction

separation of powers

administrative act/decision/regulation

administrative court

administrative law

collateral proceeding

direct challenge

judicial control

judicial review

legislative supremacy

mandatory order

natural justice

quashing order

parliamentary sovereignty

primary legislation

procedural impropriety

prohibitig order

public authority

ultra vires

Thank you!