Unit 18 Judicial review by Snjeana Husinec Judicial

Unit 18: Judicial review by Snježana Husinec

Judicial review 1. 2. What can the courts review, or control in the field of public administration? What are public authrorities? by Snježana Husinec

Judicial review ¡ ¡ v Power of the administrative courts to control the legality of decisions made by public bodies. 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

Public authorities ¡ governmental agencies or corporations that provide public services for the citizens • Central government (public bodies and officials) Local government (local councils) Members of the executive – police officers and ministers The health service Maintained schools and other educational institutions • • by Snježana Husinec

Grounds for judicial review ¡ Administrative Court can review the decisions of administrative bodies to ensure that they do not act: ULTRA VIRES (beyond power) – the starting point of judicial review I. ILLEGALY II. IRRATIONALY III. Commit 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 IMPROPRIETY Unreasonableness – in the event of an unreasonable decision from the point of view of its logic or accepted moral standards by Snježana Husinec

Ultra vires doctrine ULTRA VIRES (beyond power) – the starting point of judicial review ¡ The courts should ensure that powers do not exceed the limits set out by Paliament by Snježana Husinec

Judicial review or appeal? ¡ APPEAL – the court can substitute its decision for that of the administrative body; cannot examine the merits of the case ¡ JUDICIAL REVIEW – concerned only with the legality of the decision or act under review - the court simply quashes the decision if the public body has no power to make it (ultra vires) by Snježana Husinec

a) Procedural ultra vires A breach of natural justice Procedural ultra vires includes: a) Violating important statutory procedures b) Bias c) Lack of fair hearing d) Failure to give reasons for a decision ¡ The courts QUASH it (THE RIGHT TO A FAIR TRIAL - Article 6 of teh European Convention on Human Rights) by Snježana Husinec

b) Substantive ultra vires When the content of the decision was outside the power of the public body that made it - If unlawful - If unreasonable - If a public body took into account irrelevant considerations or failed to take relevant factors into account - If abusing powers for an improper purpose (bad faith, vindictiveness) ¡ The courts QUASH it by Snježana Husinec

European Court of Human Rights, Court of Justice of the EU „A public body can only make what is proportionate to the end to be achieved” a pubic body is not allowed to cause a greater degree of interference with the rights or interests of individuals than it is required to seve the state’s objectives by Snježana Husinec

Remedies A) - Ordinary civil law remedies: Damages Injunction declaration by Snježana Husinec

Remedies Public law remedies = prerogative orders (obvezujući sudski nalozi) 1. Quashing order – quashes (nullifies) and ultra vires decision 2. Mandatory order – order eg. - to compel a tribunal to hear a previously refused appeal - to force a local authority to produce its accounts for inspection by a local resident 3. Prohibiting order - prevents a decision being made which, would be subject to a quashing order (eg an inferior court to start a proceedings outside their jurisdiciton) ¡ by Snježana Husinec

Procedure Civil Procedure Rules, Part 54 - Contain safeguards to protect public authorities from unreasonalbe or frivoulous complaints and to prevent the abue of legal process. 1) Time limit 2) Leave 3) Locus standi by Snježana Husinec

Procedure 1. Time limit = application should be made within 3 months of the date when the grounds for the application arose by Snježana Husinec

Procedure 2. Leave = before the case can be heard, leave must be obtained the appplicants must prove that they have an arguable case by Snježana Husinec

Procedure 3. Locus standi = the applicant must have ‘a sufficient interest in the matter to which the application relates’ (prevents time to being wasted by vexatious litigants) by Snježana Husinec

Translate the following essential expressions into Croatian. o ¡ ¡ ¡ ¡ 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 abuse power = to challenge a decision = a remedy = ¡ ¡ ¡ ¡ by Snježana Husinec damages = injunction = declaration = preorogative orders = grounds for the application = to obtain leave = an arguable case =

Types of judicial review A) Judicial review of administrative acts (e. g. B) Judicial review of legislation decisions to grant a subsidy or to withdraw a residence permit) - CARRIED OUT BY Ø administrative courts – (Germany, France, Croatia …) Ø regular civil courts, special divisions of civil courts (UK, Netherlands) - 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

Judicial review of legislation Two basic types: 1. US model – federal judges can declare void a law that conflicts with the constitution 2. Austrian model - a law is set aside by a specialized court, the Constitutional Court which exists only to exercise that power by Snježana Husinec

Another form of judicial review 3. Judicial review by a transnational court – The European Court of Justice ceclared in the case Costa v. ENEL (1964) that the EU Treaties had made invalid any prior conflicting legislation of the member states, and that these treaties would function as higher law making void any subsequent member states - Judges in the member states are obliged to give precedence to European law over conflicting national law. by Snježana Husinec