Judicial control of public
authorities
APRIL 8, 2015
Public authorities
UK
 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that are no longer valid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
 natural justice
 administrative court
 quashing order
 administrative law
 parliamentary sovereignty
 collateral proceeding
 primary legislation
 direct challenge
 procedural impropriety
 judicial control
 prohibitig order
 judicial review
 public authority
 legislative supremacy
 ultra vires
 mandatory order
Thank you!