Unit 34

The Judiciary vs. The Executive Courts vs. Public authorities  New Brunswick Parents Request Judicial Review of FSL (French Second Language programs) Changes (  “A millionaire businessman today won permission for a high court challenge over the government’s refusal to hold a referendum on the EU reform treaty.” (The Guardian, 2nd May 2008) “A legal bid to challenge the power of the police to use surveillance against peaceful protesters has been launched at the High Court.” (

Public authorities governmental agencies or corporations that provide public services for the citizens Central government Local government The health service Schools and other educational institutions Police Other public bodies and officials

Judicial review process by which courts exercise judicial control of administrative action – courts have the power to annul legislative or executive acts which are contrary to the provisions of the constitution SUBJECT MATTER of every judicial review – a decision made by some person or body - refusal to make a decision  an example of SEPARATION OF POWERS in a modern legal system

Types of judicial review A) Judicial review of administrative acts (e.g. decisions to grant a subsidy or to withdraw a residence permit) - CARRIED OUT BY  administrative courts – (Germany, France, Croatia …)  regular civil courts, special divisions of civil courts (UK, Netherlands) B) Judicial review of legislation - review of constitutionality of legislation (USA) - in some jurisdictions review of primary legislation is not allowed (UK – the doctrine of Souvereignity of Parliament; Netherlands – ruling on the questions of constitutionality expressly forbidden)

Judicial review or appeal? APPEAL – the court can substitute the decision of an administrative body by its own JUDICIAL REVIEW – concerned only with the legality of the decision or act under review (the courts simply quashes the decision and the administrative body can reconsider the matter)

Judicial review in the United States Marbury v. Madison (1803); Supreme Court of the United StatesSupreme Court of the United States William Marbury James Madison, State Secretary of the US

Judicial review in the United States no judicial review explicit in the United States Constitution; the doctrine has been inferred from that document 5 of the 13 states had some form of "judicial review" or "judicial veto" in their state Constitutions at the time of 1787's Constitutional Convention Article III of the United States Constitution – Article on judicial power

Judicial review in English law a procedure in English administrative law a person who feels that an exercise of such power by a government authority (e.g. a minister, the local council or a statutory tribunal), is unlawful may apply to the Administrative Court (a division of the High Court) for judicial review of the decision and have it set aside and possibly obtain damages (a court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally) no judicial review of primary legislation (laws passed by Parliament)

Grounds for judicial review ULTRA VIRES (beyond power) – the starting point of judicial review Administrative action is subject to judicial control under 3 heads: I. ILLEGALITY II. IRRATIONALITY III. PROCEDURAL IMPROPRIETY

Match the grounds for judicial review with their definitions ILLEGALITY Failure by the decision maker to observe procedural rules that are expressly laid down in the legislation – PROCEDURAL ULTRA VIRES IRRATIO- NALITY The decision-maker must understand correctly the law that regulates his decision- making power and give effect to it Acts done in excess of power – invalid as being ULTRA VIRES PROCEDURAL IMPROPRIETY Unreasonableness – in the event of an unreasonable decision from the point of view of its logic or accepted moral standards

Two ways to obtain a remedy 1. DIRECT CHALLENGE - the object of the proceedings is simply to impugn an administrative act 2. CHALLENGE IN COLLATERAL PROCEEDINGS - the validity of the administrative act arises incidentally (enforcement proceedings)

Essential expressions 1. to exercise judicial control 2. to review, a review 3. to annul/quash/set aside/invalidate/ impugn a decision 4. ultra vires = beyond power 5. to exceed power = to step outside the limits 6. acts done in excess 7. to abuse power 8. a challenge 9. a remedy

Provide each of the three paragraphs of the text, p. 155, with a subtitle. Paraghraph 1. Paragraph 2. Paragraph 3.

Read the text and find English equivalents for the following legal expressions: 1. sudska revizija/nadzor 2. organ vlasti krši ovlasti 3. bitna prirodna posljedica vrhovne vlasti parlamenta 4. opravdanje za intervenciju suda 5. pribaviti pravnu pomoć / pravni lijek 6. izravno osporavanje/pobijanje 7. pobiti odluku upravnog tijela 8. pravovaljanost upravnog akta 9. Kršenje propisa/uredbe 10. počiniti prekršaj