Transcript Judicial control of public authorities

Judicial control of public
authorities
Supreme Court USA
by Snježana Husinec
The Judiciary vs. The Executive
Courts vs. Public authorities

New Brunswick Parents Request Judicial Review of FSL
(French Second Language programs) Changes
(www.educationnb.org.)
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“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)
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“A legal bid to challenge the power of the police to use
surveillance against peaceful protesters has been
launched at the High Court.”
(www.bbc.co.uk)
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Small shareholders seek judicial review over
Northern Rock compensation (The Times, 24th April
2008)
by Snježana Husinec
Public authorities
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governmental agencies or corporations
that provide public services for the
citizens
Central government
Local government
The health service
Maintained schools and other educational
institutions
Police
Other public bodies and officials
by Snježana Husinec
Judicial review
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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
by Snježana Husinec
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
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administrative courts – (Germany, France, Croatia
…)
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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)
by Snježana Husinec
Examples of the types of decision which may
fall within the range of judicial review
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Decisions of local authorities in the exercise of
their duties to provide various welfare benefits
and special education for children in need of such
education
Certain decisions of the immigration authorities
and Immigration Appellate Authority
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Decisions of regulatory bodies
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Decisions relating to prisoner's rights
by Snježana Husinec
Judicial review or appeal?
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APPEAL
– the court can substitute its decision for
that of the administrative body
JUDICIAL REVIEW
– concerned only with the legality of the
decision or act under review
(the court simply quashes the decision
and the administrative body can
reconsider the matter)
by Snježana Husinec
Judicial review in the United States
William Marbury
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James Madison, State
Secretary of the US
Marbury vs. Madison (1803);
Supreme Court of the United States
by Snježana Husinec
Judicial review in the United States
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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
by Snježana Husinec
Judicial review in English law
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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)
by Snježana Husinec
Grounds for judicial review
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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
by Snježana Husinec
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
IRRATIONALITY
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 Unreasonableness – in the event of an
IMPROPRIETY unreasonable decision from the point of
view of its logic or accepted moral
standards
by Snježana Husinec
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
by Snježana Husinec
Essential expressions
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to exercise judicial control
to review, a review
to annul/quash/set aside/invalidate/
impugn a decision
ultra vires = beyond power
to exceed power = to step outside the limits
to intervene
acts done in excess
to abuse power
a challenge
a remedy
by Snježana Husinec
Read the text and summarize each of the
three paragraphs in one sentence
Paragraph 1.
Paragraph 2.
Paragraph 3.
by Snježana Husinec
Read the text and find English equivalents
for the following legal expressions.
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sudska revizija/nadzor
organ vlasti krši ovlasti
bitna prirodna posljedica vrhovne vlasti
parlamenta
opravdanje za intervenciju suda
pribaviti pravnu pomoć
direktno osporavanje/pobijanje
pobiti odluku administrativnog tijela
pravovaljanost administrativnog čina
kršenje mjesnog propisa/uredbe
počiniti prekršaj
by Snježana Husinec
Translate the following sections of Article III
of the United States Constitution.
Section 1.
The judicial power of the United States, shall be vested in one
Supreme Court, and in such inferior courts as the Congress may
from time to time ordain and establish....
Section 2.
The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority....In
all cases affecting ambassadors, other public ministers and
consuls, and those in which a state shall be party, the Supreme
Court shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction,
both as to law and fact, with such exceptions, and under such
regulations as the Congress
by Snježana Husinec