Judicial control of public authorities

1. Judicial control of public authorities Supreme Court USA by Snježana Husinec

2. The Judiciary vs. The ExecutiveCourts vs. Public authorities • New Brunswick Parents Request Judicial Review of FSL (French Second Language programs) Changes(www.educationnb.org.) • “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.” (www.bbc.co.uk) • Small shareholders seek judicial review over Northern Rock compensation (The Times, 24th April 2008) by Snježana Husinec

3. Public authorities • 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

4. 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 by Snježana Husinec

5. 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) by Snježana Husinec

6. Examples of the types of decision which may fall within the range of judicial review • 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 • Decisions of regulatory bodies • Decisions relating to prisoner's rights by Snježana Husinec

7. Judicial review or appeal? • 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

8. Judicial review in the United States • Marbury vs. Madison (1803); Supreme Court of the United States James Madison, State Secretary of the US William Marbury by Snježana Husinec

9. 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 by Snježana Husinec

10. 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) by Snježana Husinec

11. 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 by Snježana Husinec

12. Match the grounds for judicial review with their definitions by Snježana Husinec

13. 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

14. Essential expressions • 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

15. Read the text and summarize each of the three paragraphs in one sentence Paragraph 1. Paragraph 2. Paragraph 3. by Snježana Husinec

16. Read the text and find English equivalents for the following legal expressions. • 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

17. 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