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

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
Ordinary members of the public cannot make delegated legislation
An Act of Parliament is required, known as an enabling Act, which gives this power to a branch of a state
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 legislatikon 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

51. Legal terms Supremacy Najviša vlast, nadmoć, primat
Statutory interpretation
Zakonsko tumačenje
Remedy
Pravni lijek
By-law
Podzakonski akt, propis, uredba, lokalni propis

52. Legal terms Commit an offence Počiniti kazneno djelo Impugn /im’pju:n/
Osporiti, opovrgnuti, dovesti u pitanje

53. Fill in the missing words: annul, constitution, executive, governmental, Judicial, judiciary, jurisdictions, procedure, separation
___review is the power of the courts to___ the acts of the _____ and/or the legislative power where it finds them incompatible with a higher authority, such as the terms of a written___. Judicial review is an example of the functioning of ____of powers in a modern governmental system (where the ___ is one of several branches of government). This principle is interpreted differently in different___, which also have differing views on the different hierarchy of ___norms. As a result, the ___ and scope of judicial review differs from country to country and state to state.

54. Key
Judicial review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher authority, such as the terms of a written constitution. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of several branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

55. administrative, courts, delegated, disputes, governmental, implemented, public, review
Most modern legal systems allow the courts to review ___acts, i.e. individual decisions of __body, e.g. a decision to grant a subsidy or to withdraw a residence permit. Certain ___systems, most notably in France and Germany, have ___a system of administrative___, that are charged exclusively with deciding on ___between the members of the public and the administration.

56. Key
Most modern legal systems allow the courts to review administrative acts, i.e. individual decisions of public body, e.g. a decision to grant a subsidy or to withdraw a residence permit. Certain governmental systems, most notably in France and Germany, have implemented a system of administrative courts, that are charged exclusively with deciding on disputes between the members of the public and the administration

57. administrative, courts, delegated, disputes, governmental, implemented, public, review
In other countries, e.g. the United Kingdom and the Netherlands, judicial __is carried out by regular civil courts, although it may be ____ to specialized panels within these courts, such as the Administrative Court within the High Court of England and Wales.

58. Key
In other countries, e.g. the United Kingdom and the Netherlands, judicial review is carried out by regular civil courts, although it may be delegated to specialized panels within these courts, such as the Administrative Court within the High Court of England and Wales.

59. constitutional, constitutionality, forbids, legislation, sovereignty, state, statutes
In American legal language, the term "judicial review" usually refers to the review of the ___of legislation by both federal and ___courts, such as the Supreme Court of the United States. However, many legal systems specifically do not allow any review of primary___, passed by parliament.

60. Key
In American legal language, the term "judicial review" usually refers to the review of the constitutionality of legislation by both federal and state courts, such as the Supreme Court of the United States. However, many legal systems specifically do not allow any review of primary legislation, passed by parliament.

61. constitutional, constitutionality, forbids, legislation, sovereignty, state, statutes
In the UK, ___cannot be set aside under the doctrine of parliamentary. ___Another example is the Netherlands, where the Constitution expressly ___the courts to rule on the question of constitutionality of primary legislation. Many countries whose constitutions do provide for a review of primary legislation on compatibility with the constitution, have established special ___courts that have the exclusive authority to deal with this issue

62. Key
In the UK, statutes cannot be set aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands, where the Constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.Many of the countries whose constitutions do provide for a review of primary legislation on compatibility with the constitution, have established special constitutional courts that have the exclusive authority to deal with this issue

63. Translation: Sudska kontrola državnih tijela
Ako je tijelo javne uprave djelovalo nezakonito, sudovi imaju ovlast i dužnost poduzeti odgovarajuće mjere ako im je takav predmet upućen. Ishodište postupka protiv javnih tijela i službenika je doktrina ultra vires. Ukoliko zakon tijelu javne uprave daje ovlast da nešto učini, ta je ovlast uvijek ograničena.

64. Translation
Postoje ograničenja u pogledu onoga što se smije učiniti; svrhe za koje se određena ovlast može koristiti često su specifične; vjerojatno će se utvrditi procedura koju treba slijediti. Ako tijelo vlasti prekorači te granice, postupa preko svojih ovlasti (ultra vires): postupak je nezakonit i sudovi moraju intervenirati. U najjednostavijem obliku, sudski nadzor je način kojim se osigurava poštivanje volje parlamenta. To je temeljna posljedica suverenosti parlamenta.

65. Translation
No nadzor nad zakonitošću nije samo grana tumačenja zakona. Sudovi su otišli dalje. Oni se ne bave samo onim što zakon uistinu kaže, ili jasnom namjerom zakonodavnog tijela; oni u zakone također učitavaju zahtjeve za koje pretpostavljaju da su implicitno sadržani u upotrijebljenim riječima, no zapravo ih je stvorio sud.

66. Translation
Na taj su način izgradili pravo sudske prakse za koje se smatra da se primjenjuje na sva javna tijela osim ukoliko su izričito isključena odgovarajućim zakonima. Izgovor za intervenciju sudova i dalje je obično ultra vires, no u nekim okolnostima to nije uvjerljivo i u nekim je slučajevima bolje smatrati da je pravo sudske prakse, prije negoli odgovarajući zakon, temelj za takvu intervenciju.

67. Translation
Postoje dva načina kako se može dobiti pravni lijek: izravnim ili neizravnim pobijanjem. U prvom je slučaju predmet postupka dovesti u pitanje neki čin javne uprave, ili u slučaju nečinjenja, zahtijevati da se poduzme odgovarajuća radnja; u neizravnom postupku neposredna je svrha postupka potpuno drugačija i valjanost upravnog čina utvrđuje se uzgredno.

68. Translation
Objasnit ćemo to primjerom. Pretpostavimo da su mjesne vlasti donijele podzakonski akt koji se smatra ništavnim. Osoba koja je time pogođena može odabrati dva puta: ili otići na sud i tražiti da se proglasi ništavnim (izravno pobijanje) ili ga može zanemariti i čekati da mjesne vlasti poduzmu prisilno izvršenje. Ukoliko osoba bude optužena za kršenje podzakonskog akta, može tvrditi da je ništavan a sud će morati utvrditi njegovu valjanost prije nego što odluči je li počinio prijestup.

69. Translation
To je neizravno pobijanje. No, u mnogim okolnostima, do mogućnosti neizravnog pobijanja upravnog akta neće doći, te je izravno pobijanje jedina mogućnost.