JUDICIAL CONTROL OF PUBLIC AUTHORITIES Unit 34

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

INTRODUCTION  If an individual has suffered a grievance at the hands of a public body, he may be able to obtain redress through the courts  Judicial review enables the court to review decisions of government ministers, inferior courts etc. To ensure they do not act illegally, irrationally or comit procedural impropriety

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  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

Ultra vires  Where a body used its power in an unreasonable way, acted in bad faith, refused to take relevant factors into consideration in reaching its decision or based its decision on irrelevant ones, the court will intervene on the ground that the body had abused its power

The basis of judicial control  The courts considered that when Parliament gave a body statutory power to act, Parliament intended it to act in a particular way: in good faith, in a reasonable manner, in accordance with natural justice

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

Illegality  „By illegality as a ground for judicial review I mean that the decision maker must understand correctly the law that regulates the decision making power and must give effect to it” (Lord Diplock in CCSU)

Illegality  To determine the legality of the action or decision the court must consider what is the area over which power is given  Any exercise of power which falls outside that area – invalid

Presumptions of statutory interpretation  Presumption that a body has no power to act retrospectively  The presumprion that a body has no power to restrict a person’s access to the courts

Illegality  A statute might prescribe that the power should be exercised by a named person or a person with specific qualifications  If it is exercised by another it may be an ultra vires act which is nullity

Example  In Allingham v The Minister of Agriculture and Fisheries (HC, 1948) the minister had the statutory power to give directions regarding the cultivation of land for agricultural purposes  He had an express power to delegate this function to a committee which attempted to subdelegate its functions to an executive officer who issued a directive to a farmer that only sugar should be grown in a particular field

(cont.)  The farmer failed to comply with the direction, and, when fined, challenged its validity alleging that the executive officer had no power to issue it  The court quashed the conviction finding that only the minister or the committee had the popwer to issue such orders under the statute

Comment  The courts – reluctant to allow any sub- delegation of judicial or legislative powers

Irrationality  „It applies to a deciswion which 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 to be decided could have arrived at it!” (Lord Diplock)

Irrationality  Public authorities are never empowered to exercise their powers irrationally  Irrational action by a public authority is considered to be ultra vires  Abuse of power

Unreasonableness  Decision – so unreasonable that no reasonable person would agree with it

Irrelevant considerations  Unlawful behaviour:  A) refusal to consider the relevant matter  B) a misdirection on a point of law  C) taking into account irrelevant considerations  Omitting to take into account a relevant consideration

Irrationality  Improper purpose  Failure to give reasons  proportionality

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

Procedural impropriety  Breach of implied procedural requirements  Implied requirements of fairness  The duty to give reasons  The rule against bias  The Human Rights Act

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