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English for Lawyers 4

English for Lawyers 4. Lecturer: Miljen Matijašević e-mail: miljen.matijasevic @ gmail.com Session 7 , 30 April 2014. Today’s session. Revision of the last session Judicial Control of Public Authorities Vocabulary practice. Revision of the last session.

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English for Lawyers 4

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  1. English for Lawyers 4 Lecturer: Miljen Matijašević e-mail: miljen.matijasevic@gmail.com Session 7, 30 April 2014

  2. Today’s session • Revision of the last session • Judicial Control of Public Authorities • Vocabulary practice

  3. Revision of the last session Forms of Business Organisation in the USA

  4. Revision of the last session • What is sole proprietorship? What kinds of businesses is it suitable for? • What is a partnership? What does a partnership agreement regulate? • What are its advantages compared to s.p.? • What is a private limited company? • What can a private limited company do if it wants to raise substantial capital?

  5. Revision of the last session • What is the difference between a private and a public limited company? • Explain the notions of shareholders and the Board of Directors. What is their relationship? • How can the profit that a PLC makes be utilised? Whose decision is it? • What is an AGM and what happens there?

  6. Judicial Control of Public Authorities Unit 34

  7. Separation of Powers • Remember the doctrine of separation of powers. What are the three branches of power and what are their powers? • Who appoints and confers powers on the executive branch? • These powers are referred to as administrative powers

  8. Administrative powers • Administrative powers arepowers of an executive nature conferred by Parliament on government ministers, public and local authorities etc. for the purpose of implementing broadly defined policy • e.g. issuing decisions concerning compulsory purchase of land, granting licences to practice a certain profession, town and country planning, regulation of public health, environmental matters, welfare services, control oftrade, etc.

  9. Delegated legislation • In the strict sense, legislation refers to Acts of Parliament, enacted by the Queen in Parliament • Legislation in the broader sense can be laid down by other bodies. • Legislation issued by administrative bodies is referred to as delegatedlegislation

  10. Delegated legislation Legislation enacted by bodies other than Parliament: • Orders in Council (laws enacted by the Government, usually in emergency situations) • Statutory Instruments (enacted by government ministers, usually contain more concrete operating provisions than statutes) • Byelaws(enacted by local authorities) • What would be their Croatian counterparts?

  11. Administrative powers • These powers are always limited, i.e. an Act of Parliament lays down the framework within which an administrative body may act • These limits may refer to: • the nature/content of the act itself • its purpose • procedure to be followed

  12. Administrative powers • Any action seen as a transgression of this power is considered to be ultra vires (i.e. beyond the powers) • If an administrative act is found to be ultra vires, it is declared invalid

  13. Judicial Control of Public Authorities • The power to review actions taken by administrative bodies lies in the hands of the courts • This is referred to as judicial review – challenging the validity of administrative acts/decisions

  14. Judicial Control of Public Authorities • Jurisdiction for judicial review of decisions issued by public authorities: • the Administrative Court (set up within the High Court of Justice, Queen’s Bench Division)

  15. Judicial Control of Public Authorities • A remedy may be obtained in two ways: • direct challenge • challenge in collateral proceedings

  16. Judicial Control of Public Authorities • DIRECT CHALLENGE • the object of proceedings is to impugn an administrative act or, in the case of failure to act, to require action to be taken • the court is asked directly to review the validity of the administrative act

  17. Judicial Control of Public Authorities • CHALLENGE IN COLLATERAL PROCEEDINGS • challenge of an administrative act arises in the course of proceedings whose purpose is something other than judicial review • e.g. a person affected by an administrative act waits until the act is enforced and he/she is sued for the violation thereof • in the course of this proceeding the defendant may claim the act invalid and request a review • the court must determine the validity of the act before reaching a decision on the merits of the original case

  18. Grounds for review • The courts interpret the legislation under review, but also use common-law grounds for adjudication: • illegality • irrationality • procedural impropriety

  19. Grounds for review • ILLEGALITY • not in accordance with the law conferring the power • overstepping powers (ultra vires) • misconstruing the law or failing to establish facts properly • issuing a decision for the wrong purpose • ignoring relevant considerations

  20. Grounds for review • IRRATIONALITY • refers to unreasonable decisions, defying logic and moral standards “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

  21. Grounds for review • PROCEDURAL IMPROPRIETY (1/2) • Statutory procedures • Statute may lay down procedures to be followed in making administrative decisions (consulting experts, conducting a public survey, etc.). Failure to comply with the procedure gives grounds for judicial review.

  22. Grounds for review • PROCEDURAL IMPROPRIETY (2/2) • Breach of natural justice • The rule against bias • bias in making decisions (or possibility thereof) • The right to a fair hearing • failure to hear the claimant’s arguments by the administrative body • Duty to give reasons • failure to provide reasons for the decision

  23. Available remedies • QUASHING ORDER • quashing (annulling) the administrative decision • MANDATORY ORDER • forcing the administrative body to act in accordance with its powers when it fails to do so

  24. Available remedies • PROHIBITING ORDER • ordering the public body to cease a course of action • The claimant may also seek damages

  25. Key terms administrative powers delegated legislation judicial review ultra vires direct challenge challenge in collateral proceedings grounds for review illegality irrationality procedural impropriety statutory procedure natural justice quashing order mandatory order prohibiting order

  26. Translation practice

  27. Translate the following passage Judicial review is the power given to the courts to annul legislative or executive acts which the judges declare are contrary to the provisions of the constitution. The main difference between review and appeal is that, in the latter case, the court can normally substitute its decision for that of the administrative body, while in the case of review, the court simply quashes the decision and the administrative body can reconsider the matter.

  28. Thank you for your attention!

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