JUDICIAL CONTROL OF PUBLIC AUTHORITIES

1. JUDICIAL CONTROL OF PUBLIC AUTHORITIES Unit 34

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

3. Judicial review • A review by a higher court of the actions of a lower court or of an administrative body

4. 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

5. 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

6. 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

7. Administrative powers • in town and country planning, regulation of public health, environmental matters, • welfare services, • control of trades, professions and other activities

8. Delegated legislation • Legislation made under powers conferred by an Act of Parliament • The bulk of delegated legislation - governmental

9. Delegated legislation • 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

10. Subdelegated legislation • Legislation made under powers conferred by delegated legislation or by subdelegated legislation itself

11. 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

12. Subdelegated legislation • The parent Act authorizes a minister to make regulations and these in turn authorize others to make orders • subject to judicial control by means of the doctrine of ultra vires

13. 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

14. Ultra vires doctrine • In the field of public (administrative) law governs the validity of all delegated and subdelegated legislation

15. Delegated legislation • In many cases, the statutes passed by Parliament lay down a basic framework of the law • Creation of detailed rules – delegated to Government departments, local authorities, or public bodies

16. Forms of delegated legislation • 1) Statutory instruments • 2) Bye-laws • 3) Orders in Council

17. Statutory instruments • Rules and regulations made by Government Ministers • Ministers and Government departments are given authority to make regulations for areas under their responsibility (e.g. the Minister for Transport can deal with necessary road traffic regulations) • Cc. 3,000 statutory instruments brought into force each year

18. Bye-laws • Made by local authorities and public bodies • Have to be approved by central Government • E.g. the smoking ban on the London Underground system

19. Orders in Council • Made by Government in times of emergency • Drafted by the relevant Government department, approved by the Privy Council and signed by the Queen

20. Delegated legislation • An Act of Parliament is required to make delegated legislation, known as an enabling Act, • The Act can be specific, giving a limited power to legislate on a very narrow issue, or it may allow for a wide range of delegated legislation to be made

21. Why is delegated legislation necessary? • Insufficient parliamentary time • Speed • Technicality of the subject matter • Need for local knowledge • Flexibility • Future needs

22. Control of delegated legislation • Since it is not directly made by elected representatives, delegated legislation is subject to a range of controls in order to ensure that the power delegated is not abused

23. Control of delegated legislation • Consultation • Publication • Supervision by Parliament • Control by the courts: judicial review

24. Consultation • Those who make delegated legislation often consult experts in relevant fields and bodies which are likely to be affected by it • Often the relevant statute makes such consultation obligatory and names the bodies which should be consulted

25. Publication • All delegated legislation is published and available for public scrutiny • Alongside the statutory instrument, the Government now publishes an explanatory memorandum detailing the statutory instrument’s policy objective and legislative context

26. Supervision by Parliament • Revocation • The affirmative resolution procedure • The negative resolution procedure • Committee supervision • Question from MPs

27. Revocation • Parliamentary sovereignty – Parliament can at any time revoke a piece of delegated legislation

28. The affirmative resolution procedure • Enabling Acts dealing with subjects of special, often constitutional, importance may require Parliament to vote its approval of the delegated legislation • Delegated legislation becomes valid only if a motion approving it is passed within a specified time (usually 28 or 40 days)

29. The negative resolution procedure • Within a specified time (usually 40 days), any MP may put down a motion to annul it • If, after debate, either House passes an annulment motion, the delegated legislation is cancelled

30. Committee supervision • Several parliamentary committees monitor new delegated legislation • The Joint Committee on Statutory Instruments watches over the making of delegated legislation and reports to each House on any delegated legislation which requires special consideration

31. Questions from MPs • MPs can ask Ministers questions about delegated legislation at a ministerial question time, or raise them in debates

32. Control by the courts: judicial review • While the validity of a statute can never be challenged by the courts because of parliamentary sovereignty, delegated legislation can • It may be challenged on any of the following grounds:

33. Grounds for judicial review • Procedural ultra vires • Substantive ultra vires • Unreasonableness

34. Procedural ultra vires • The complainant claims that the procedures laid down in the enabling Act for producing delegated legislation have not been followed

35. Substantive ultra vires • Based on a claim that the measure under review goes beyond the powers Parliament granted under the enabling Act

36. Unreasonableness • If rules are manifestly unjust, have been made in bad faith (e.g. by someone with a financial interest in their operation) or are otherwise so perverse that no reasonalbe official could have made them, the courts can declare them invalid

37. The mechanism for seeking judicial review • By making a claim to the Administrative Court

38. Remedies • Direct challenge • Challenge in collateral proceedings

39. Direct challenge • To impugn some act of the administration, or in the case of failure to act, to require action to be taken

40. Collateral proceedings • The purpose of the proceedings is different and the validity of the administrative act arises incidentally

41. Remedies • In many circumstances an opportunity to challenge an administrative act in collateral proceedings will not arrise • A direct challenge – the only possibility

42. 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:

43. Example • 2) ignore it and wait for the local authority to take enforcement proceedings • If the person involved 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 breached the bye-law

44. Criticism of delegated legislation • Lack of democratic involvement • Overuse • Sub-delegation • Lack of control

45. Lack of democratic involvement • Delegated legislation – made by civil servants, rather than elected politicians

46. Overuse • Critics argue that there is too much delegated legislation

47. Sub-delegation • Delegated legislation is sometimes made by people other than those who were given the original power to do so

48. Lack of control • Effective supervision – difficult • Some enabling acts confer wide discretionary powers on Ministers – as a result, there is very little room for anything to be considered ultra vires • The main method of control - parliamentary

49. Judicial Review • May be used to challenge action by public authorities that is incompatible with the European Convention on Human Rights

50. Legal terms • Judicial review • Nadzor nad zakonitošću; sudska kontrola, sudska revizija • Judicial Review Act • Zakon o vođenju postupka protiv javnih tijela i službenika • Judicial review proceeding • Upravni spor o zakonitosti odluke