1. Unit 18
JUDICIAL REVIEW

2. I Discuss the following questions:
1. According to you, what is the meaning of “judicial review”? What can the courts review, or control, in the field of public administration?
2. Can you think of two basic types of control exercised by courts?

3. Preview Definition Ultra vires doctrine Procedural ultra vires
Substantive ultra vires
Remedies
Procedure: safeguards

4. Judicial Review of Public Administration
The term judicial review refers to the power of administrative courts to control the legality of decisions made by public bodies.
The rule of law requires that the legality of government action be subject to review by independent and impartial tribunals.
The system of judicial review by a higher court oversees the decisions of public bodies and officials, local councils, and members of the executive including police officers and government ministers.

5. Judicial review of public administration
The Administrative Court can review the decisions of government ministers and other administrative bodies to ensure that they do not act illegally, irrationally or commit some procedural impropriety.
The court follows a special flexible procedure designed to cater for the public interest; actions against the government should be dealt with quickly and without trespassing into the legitimate area of government freedom.

6. Ultra vires doctrine
In the UK, the main basis for judicial review is the ultra vires doctrine which assumes that, because most government powers are created by an Act of Parliament, the courts' role should be confined to ensuring that powers do not exceed the limits set out by Parliament.

7. Ultra vires doctrine
Unlike the appeal process, judicial review does not examine the merits of the decision. It can only quash a decision if the public body had no power to make it, known as ultra vires ('beyond powers').
There are two forms of ultra vires: procedural ultra vires and substantive ultra vires.

8. Procedural ultra vires
Where there has been procedural ultra vires, it is often said that there has been a breach of natural justice

9. Procedural ultra vires
Procedural ultra vires includes the following:
a) violating important statutory procedures;
b) bias;
c) lack of a fair hearing;
d) failure to give reasons for a decision
This has been bolstered by Art. 6 of the European Convention on Human Rights which lays down the right to a fair and an impartial hearing.

10. Substantive ultra vires
This occurs where the content of the decision was outside the power of the public body that made it.
Sometimes legislation may make it clear what the limits on the public body's powers are.
Often, however, the legislation does not lay down clear limits on the public body's powers.

11. Substantive ultra vires
To get around some of the problems caused by broadly drafted powers, the courts are prepared to imply certain limitations on the official's power even where they are not laid down by the relevant legislation.
Thus, a decision will be held to be outside the public body's power if it was so unreasonable that no reasonable public body could have reached it.
If the court concludes that a public body took into account irrelevant considerations or failed to take relevant factors into account, then its decision may be quashed.

12. Substantive ultra vires
The idea of a body acting beyond its powers has been extended to include abusing those powers by using them for an improper purpose, such as bad faith or vindictiveness.

13. Substantive ultra vires
Where legislation gives a public authority discretion to make decisions, e.g. to award a licence or to grant permission to carry out a development, the public authority must allow itself to consider each decision on its own merits;
the public authority must not ‘fetter’ its discretion by applying a rigid or one-size-fits-all policy to all applications without considering the specific facts of each case

14. Substantive ultra vires
A decision that is made by a public authority that has fettered its discretion in this way may be challenged on the grounds that the decision is unlawful.
It may also be challenged on the grounds that the procedure by which it was made was unfair, or on the grounds that it is unreasonable.

15. Substantive ultra vires
Where the decision-making body's own record of the proceedings reveals it has made a mistake concerning the law, the decision may be quashed.

16. Substantive ultra vires
The case law of the European Court of Human Rights and the Court of Justice of the European Union will only allow a public body to use discretionary powers to do what is proportionate to the end to be achieved.
In other words, they will not allow a public body to cause a greater degree of interference with the rights or interests of individuals than is required to serve the state's objectives.

17. Remedies
In English law, in addition to any of the ordinary civil law remedies of damages, an injunction, or a declaration, the Administrative Court may order a public law remedy only available through the judicial review proceedings.

18. Remedies, or prerogative orders
1) quashing order,
2) mandatory order, and
3) prohibiting order.

19. Remedies A quashing order quashes (nullifies) an ultra vires decision.
A mandatory order may be used, for example, to force a local authority to produce its accounts for inspection by a local resident, or to compel a tribunal to hear a previously refused appeal.
A prohibiting order can order a body not to act unlawfully in the future.

20. Remedies
While a quashing order quashes decisions already made, a prohibiting order prevents a decision being made which, if made, would be subject to a quashing order.
For example, it can prohibit an inferior court or tribunal from starting or continuing proceedings which are, or threaten to be, outside their jurisdiction.

21. Procedure
Part 54 of Civil Procedure Rules lays down the procedures to be followed for judicial review.
The rules contain safeguards to protect public authorities from unreasonable or frivolous complaints and to prevent the abuse of legal process.

22. Safeguards The safeguards include: 1) time limit, 2) leave, and
3) locus standi.

23. Time limit
An application should normally be made within three months of the date when the grounds for the application arose.

24. Leave
Before the case can be heard, leave must be obtained from a single judge in the High Court.
To obtain leave, the applicants must prove that they have an arguable case.

25. Locus standi
The applicant must have 'a sufficient interest in the matter to which the application relates'.
They must, therefore, have a close connection with the subject of the action.
This is known as locus standi.
This rule aims to prevent time being wasted by vexatious litigants or unworthy cases.

26. Answer the following questions:
1. What does the term 'judicial review' refer to in administrative law?
2. What is the main basis for judicial review in the UK?
3. Explain the meaning of the ultra vires doctrine.
4. What are the two main forms of ultra vires?
5. What does procedural ultra vires include?
6. When does substantive ultra vires occur?
7. What are the main types of substantive ultra vires?
8. What are the ordinary civil law remedies in cases of ultra vires?
9. What are the public law remedies, or prerogative orders?
10. What are the procedural safeguards protecting public authorities against unreasonable or frivolous complaints?

27. application, applied, Course, degree, grants, maintenance, profession, review, solicitor
In R v Southwark London Borough Council, ex parte Udu (1995) the applicant had obtained a law __________________from South Bank University. The applicant _______________ to his local authority for a discretionary __________________ award in order to study the Legal Practice _________________ at the College of Law to qualify as a ________________________. The authority rejected the _____________________ in accordance with its policy of not providing __________________ for study at private institutions. The application for judicial ___________________was dismissed. The authority could have a policy on the award of postgraduate grants provided it was rational and flexible and rejected the argument that the result of the policy was that only children of wealthy parents could enter the legal ____________________.

28. Put the verbs in brackets into the appropriate forms:
In R v Derbyshire County Council, ex parte Times Supplements (1990), The Times _______________(challenge) Derbyshire County Council's decision to withdraw its advertising for educational appointments from Times publications, after the Sunday Times _______________(publish) two articles ____________________(accuse) the council of improper and legally doubtful behaviour. The Divisional Court ___________________ (hold) that the council's decision _________________________ (motivate, passive) by bad faith and vindictiveness, and ___________________ (be) therefore an abuse of power.

29. Match the verbs with the appropriate nouns:
exceed
reasons
give
jurisdiction
invoke
limits
redress
obtain
grievance
suffer
procedures
violate
effect

30. Match the verbs/nouns/adjectives with the appropriate prepositions:
VERB/ NOUN/ ADJECTIVE
PREPOSITION
apply
with
arrive
out
cater to
confine at
deal
into
lay
refer of
right
for
set
beyond
stray
down
subject
tresspass

31. Judicial Review of Legislation
1. How can courts exercise judicial review regarding the constitutionality of legislation? Provide some examples from different jurisdictions.
2. Which transnational courts do you know?

32. Basic types of judicial review
Today there are two basic types of judicial review.
The first follows the U.S. model, allowing all federal judges to declare void a law that conflicts with the constitution.
The second was designed by Hans Kelsen for Austria in the interwar years. This model sets aside a specialized court, the Constitutional Court, which is given a monopoly on the power of judicial review and which exists only to exercise that power.

33. Judicial review by a transnational court
In the 1960s, yet another form of judicial review was established – judicial review by a transnational court.
The European Court of Justice (since 2009 called the Court of Justice of the European Union) had been established to enforce the three 1950's Treaties that bound together the European Communities (since 1992, called the European Union): the European Coal and Steel Community, formed by the European Coal and Steel Treaty of 1952; the European Economic Community, formed by the Treaty of Rome of 1957 and the European Atomic Energy Community, formed by the Euratom Treaty of 1957

34. Court of Justice of the EU
The European Court of Justice declared in the case Costa v. ENEL (1964) not only that the Treaties had made invalid any prior conflicting legislation of the member states but also that these treaties would function as higher law, making void any subsequent member country legislation in conflict with them.
Accordingly, ordinary judges in the member states, even in countries that did not previously allow judicial review of statutes, are obliged to give precedence of European law over conflicting national law.

35. European Court of Human Rights
In 1998, the European Court of Human Rights, which is the court upholding the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, was made a permanent court with compulsory jurisdiction over each member country and to whom individuals with human rights complaints were given direct access.

36. European Court of Human Rights
Since that time, this court too has been exercising genuinely effective judicial review of a transnational variety with power to demand legislative remedies to Convention violations in member countries as well as the power to insist that member governments issue financial compensation to litigants whose human rights have been violated.

37. Read the text and answer the following questions:
1. What are the two basic types of judicial review?
2. What is the third type of judicial review which was established in the 1960's?
3. Which treaty established the European Union?
4. Which European Communities’ had been established prior to the Maastricht Treaty of 1992?

38. III Put the verbs in brackets into the appropriate forms:
Mr. Costa was an Italian citizen who ___________________ (own) shares in an electricity company, Edisonvolta, and ____________________ (oppose) the nationalisation of the electricity sector in Italy. He ___________________(ask) two lower courts in Milan to ascertain that the real creditor of his electricity bill (a relatively small amount of money) was the nationalised company, Edisonvolta, and not the newly established state company, Enel. He __________________ (argue) that the nationalisation of the electricity industry violated the Treaty of Rome and the Italian Constitution. The first Giudice Conciliatore of Milan _____________________ (refer) the case to the Italian Constitutional Court and the second Giudice Conciliatore referred it to the European Court of Justice.

39. IV Fill in the missing words:Constitutional, enacted, judgement, organisation, preliminary, proceedings, rule, statutes, standing, Treaty
The Italian __________________Court gave ___________________ in March 1964, ruling that while the Italian Constitution allowed for the limitation of sovereignty for international ___________________ like the European Economic Community, it did not upset the normal _________________of statutory interpretation that where two __________________ conflict the subsequent one prevails (lex posterior derogat legi anteriori/priori). As a result the _____________ of Rome which was incorporated into Italian law in 1958 could not prevail over the electricity nationalisation law which was _____________________ in 1962.

40. Costa v. Enel: words:Constitutional, enacted, judgement, organisation, preliminary, proceedings, rule, statutes, standing, Treaty
In light of the decision of the constitutional court, the Italian government submitted to the ECJ that the Italian court's request for a ___________________ruling from the ECJ was inadmissible on the grounds that as the Italian court was not empowered to set aside the national law in question, a preliminary ruling would not serve any valid purpose.

41. Costa v. Enel: words:Constitutional, enacted, judgement, organisation, preliminary, proceedings, rule, statutes, standing, Treaty
The ECJ held the Treaty of Rome rule on an undistorted market was one on which the Commission alone could challenge the Italian government. As an individual, Costa had no___________________ to challenge the decision because that Treaty provision had no direct effect. However, Costa could raise a point of EC law against a national government in legal ______________________before the courts in that Member State: EC law would not be effective if Costa could not challenge national law on the basis of its alleged incompatibility with EC law.

42. From Costa v ENEL (1964)
1. In the context of requests for preliminary rulings, the Court has no jurisdiction either to apply the Treaty to a specific case or to decide upon the validity of a provision of domestic law in relation to the Treaty, as it would be possible for it to do under Article Nevertheless, the Court has power to extract from a question imperfectly formulated by the national court those questions which alone pertain to the interpretation of the Treaty.

43. Costa v Enel
2. Article 177 is based upon a clear separation of functions between national courts and the Court of Justice and cannot empower the latter either to investigate the facts of the case or to criticize the grounds and purpose of the request for interpretation

44. Costa v Enel
3. By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.

45. Costa v Enel
By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves.

46. TRANSLATION
By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves

47. DISCUSSION
1. Discuss the importance of Costa v. Enel for the development of EU law.
2. How is this case related to judicial review on a transnational level?