Judicial review
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Judicial review is the power of a court to review a law or an official act of a government employee or agent; for example, although the basis is different in different countries, as unconstitutional or violating of basic principles of justice. In many jurisdictions, the court has the power to strike down that law, to overturn the executive act, or order a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society. In some, such as Scotland and also England, the power goes further, and it may be possible to strike down a decision simply because it ignored relevant and material facts.
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Judicial review in individual countries
Judicial review in Australia
Judicial review of federal and state legislation is esablished by Section 76 (http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s76.html) of the Constitution of Australia, making the High Court of Australia the second court in the world to exercise this power, after the US Supreme Court.
The easiest way of obtaining judicial review of administrative decisions in Australia at Commonwealth (federal) level is by proceeding under the Administrative Decisions (Judicial Review) Act 1977 (Cth), (http://www.austlii.edu.au/au/legis/cth/consol_act/adra1977396/) or ADJR for short. An administrative act may be reviewable if it is a decision of an administrative character made, proposed to be made, or required to be made under an enactment by a Commonwealth authority or officer, (http://www.austlii.edu.au/au/legis/cth/consol_act/adra1977396/s3.html) excluding a decision of the Governor-General or a decision made exempt under statute. The Act provides for review of decisions (s5), conduct engaged in for the purpose of making a decision (s6) of failing to make a decision (s7). Under the Act, statutory orders of review replace the common law writs and equitale remedies (s16).
Various Australian States also provide for statutory judicial review. In Queensland, the common law doctrines have been repealed and replaced under Part 5 (ss41-47) of the Judicial Review Act 1992 (Qld). (http://www.austlii.edu.au/au/legis/qld/consol_act/jra1991158/s41.html) Part 3 (ss20-30) provides the equivalent of the Commonwealth scheme, with the exception that decisions of an administrative character may also be reviewable if made under a "non-statutory scheme or program", provided it is publicly funded (s4(b)).
Judicial Review in Austria
When the Constitution of Austria, drafted by Hans Kelsen, was enacted in 1920, Austria was the first country to implement what is now known as the "Austrian system" of judicial review, where a separate Constitutional Court has juridisction to review the constiutionality of statutes and decrees. There are various circumstances under which the Counstitutional Court of Austria can be required to review legislation, e.g.
- upon request by a qualified parliamentary minority of one third;
- upon request of another court;
- upon request by anyone who can show that he is individually affected by the statute;
- upon appeal against an administrative act where an individual charges that it is based on unconstitutional legislation.
The Constitutional Court can also review statutes which are part of the constitution on whether they are compatible with "basic principles" of the constitution, such as democracy, federalism, the rule of law, the republican principle or the separation of powers. Other than normal constitutional statutes, pieces of legislation seriously affecting those principles (such as Austria's accession to the EU) require a referendum in addition to the two thirds majority normally required to change or amend the constitution. However, so far the court has only in one case found that part of the constitution was incompatible with its basic principles.
Judicial review in Canada
In Canada, the same principle applies as in the British parliamentary system, though since the Constitution of Canada created a federal state there was an issue of the division of powers so while there were questions regarding judicial review when jurisdictional conflicts arose, there was no clear power to overturn laws based upon other grounds. It is important to note that the courts in each province, while provincial, are courts of plenary jurisdiction under the Canadian constitution and are held to have the traditional powers of judicial review such as in England and Wales. Regarding the review of administrative decisions by public officials the concepts of fundamental justice and overturning of patently unreasonable decisionmaking have developed along with the evolution of the royal writs as in the United Kingdom.
In 1982 when the patriated Canadian Constitution came into force the Canadian Charter of Rights and Freedoms created a clear written power of judicial review. In that document, the Supreme Court of Canada was granted the power of judicial review beyond the power that it had held prior to that date. This power can be overridden by governments with respect to certain clauses of the Charter by invoking the notwithstanding clause in legislation. However, it is a mechanism which is often considered dangerous politically because of public respect for the Canadian Charter of Rights and Freedoms.
Judicial review in Germany
In Germany, judicial review is a legal principle defined and guaranteed by the German constitution (often referred to as the Basic Law or Grundgesetz). Judicial review is indeed intended as a safeguard against tyranny of the majority and has been successfully employed to challenge, for example, the national census efforts of the German government in the 1980s. In particular, article 93 states that the Federal Constitutional Court (BVerfG) shall rule:
- 1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body;
- 2. in the event of disagreements or doubts respecting the formal or substantive compatibility of federal law or state law with this Basic Law, or the compatibility of state law with other federal law, on application of the Federal Government, of a state government, or of one third of the Members of the Bundesrat;
- 2a. in the event of disagreements whether a law meets the requirements of paragraph (2) of Article 72, on application of the Bundesrat or of the government or legislature of a state;
- 3. in the event of disagreements respecting the rights and duties of the Federation and the states, especially in the execution of federal law by the states and in the exercise of federal oversight;
- 4. on other disputes involving public law between the Federation and the states, between different states, or within a state, unless there is recourse to another court;
- 4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103, or 104 has been infringed by public authority;
- 4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 has been infringed by a law; in the case of infringement by a state law, however, only if the law cannot be challenged in the constitutional court of the state;
- 5. in the other instances provided for in this Basic Law.
Also, article 93 provides that any court, as part of its proceedings, may request the Federal Constitutional Court or the appropriate land court to review a particular statute's constitutionality or compatibility with applicable international law.
Judicial review in Scotland
The power of judicial review of all actings of administrative bodies or courts in Scotland (and even in theory of the Scottish Parliament) is held by the Court of Session. The procedure is governed by Chapter 58 of the Rules of Court (http://www.scotcourts.gov.uk/rules/chapter58htm), although there are special rules for some categories of cases such as statutory review of the Asylum and Immigration Tribunal. There are no time limits on seeking judicial review, although if proper administration is prejudiced by delay the court may in its discretion refuse to grant it. In general, judicial review is available for any error of law by an administrative body, but it is sometimes possible to seek judicial review simply on the basis that the decision was entirely unreasonable, ignored known facts, or took irrelevant material into account. About six hundred judicial review cases are brought every year; most of these are settled by agreement and only a small minority have to be decided by the court. There is a full discussion on this site (http://www.jonathanmitchell.info/publiclaw.html).
Judicial review in England
Standing
Judicial review England is provided by virtue of section 31 of the Supreme Court Act 1981. Pursuant to s.31(3) a prospective applicant for judicial review must request 'leave' (now known as 'permission') to apply for judicial review, and permission shall not be granted unless "the High Court... considers that the applicant has a sufficient interest in the matter to which the application relates".
The test of sufficient interest is fairly liberal, especially when compared to the 'victim' test adopted for claims under section 6 of the Human Rights Act 1998. Representative applications are allowed, and have been permitted from charities such as Greenpeace and organisations such as the World Development Movement.
Once leave has been granted the applicant must establish grounds for review. The main grounds for review are: illegality, irrationality, procedural impropriety, Human Rights Act section 6, and breach of EC law.
Ammenability
It is not just Government bodies which are susceptible to review, but also any body which operates a public function, for example the Panel on Takeovers and Mergers.
Illegality
Under the heading of 'illegality' are encompassed the following grounds of review:
- a public body does something for which it has no positive legal authority
- a statute places a duty on a public authority and that duty has not been carried out
- a statute confers a power on an authority and that power is used for a purpose other than that intended by the statute
- in exercising a public power an authority takes into account an irrelevant consideration or fails to take into account a relevant consideration
- a statute confers a power on public body 'X' but it was taken by public body 'Y' ("unlawful delegation")
- a statute confers discretion on a public authority and that authority adopts an overly rigid policy as to how that discretion will be exercised ("fettering discretion")
- a public authority makes a factual error in arriving at its decision.
Irrationality
Under the heading of 'irrationality' are encompassed the following grounds of review:
- the decision is obviously perverse or absurd
- the decision is illogical
- the decision is disproportionate
Irrationality is also know as Wednesbury unreasonableness after the case of Associated Provincial Picture Houses Ltd v. Wednesbury Corp which stated that a decision would be unreasonable if it "is so unreasonable that no reasonable authority could ever have come to it" (per Lord Greene). It is very difficult to establish and rarely submitted as a ground on its own. There is also a sliding scale of intensity of review on the grounds of unreasonableness:
Non-justiciable --> Super Wednesbury --> Ordinary Wednesbury --> Anxious Scrutiny
Non-justiciable cases are those which involve matters best left to the executive (such as national security), and courts will refuse to review such cases on the basis of irrationality. Anxious scrutiny applies to cases involving human rights. As a general rule, the further to the right of the scale the case falls, the more likely the courts are to find that a decision was unreasonable.
Procedural impropriety
Under the heading of 'procedural impropriety' are encompassed the following grounds of review:
- the decision-maker was biased
- the decision-maker failed to provide a fair hearing
- the decision-maker failed to provide reasons for the decision after it was taken
Human Rights Act 1998 s.6
Section 6(1) of the Human Rights Act 1998 provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". The Convention referred to is the European Convention on Human Rights. An applicant may only bring a review on this ground if "he is (or would be) a victim of the unlawful act" - s.7(1)(b).
Breach of EC law
Since the Factortame case EC law has been recognised as directly effective in the UK, and it is possible to bring a review based on a breach of EC law.
Judicial review in Switzerland
Article 191 of the Swiss Federal Constitution states that federal statutes and international law are binding on the Federal Supreme Court. In consequence, the courts are not empowered to review the constitutionality of federal statutes, but will, where possible, construe statutes so as not to create a conflict with the Constitution. The courts can suspend the application of federal statutes that conflict with international law, but tend to exercise this power cautiously and deferentially: In Schubert (BGE 99 Ib 39), the Federal Supreme Court refused to do so because Parliament had consciously violated international law in drafting the statute at issue.
The reason traditionally given for the lack of judicial review is the Swiss system of popular democracy: If 50'000 citizens so demand, any new statute is made subject to a popular referendum. In this sense, it is the people themselves that exercise judicial review.
The situation described above for Swiss federal law applies mutatis mutandis to the constitutional and legal systems of the individual cantons. However, owing to the derogatory power of federal law, federal courts as a matter of course exercise judicial review on cantonal law, as well as on federal executive law (ordinances, executive orders etc.).
Judicial review in the United States
The power of judicial review is held by courts in the United States which while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. The only explicit definition given in the Constitution is in Article III, where it says that "[t]he 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." Judicial review was legally established in the Supreme Court decision in Marbury v. Madison, though some legal scholars argue that the concept predates this case and "all those who discussed judicial review during ratification [of the U.S. Constitution] (there were dozens) agreed that the Constitution authorized judicial review." Some historians trace the origin of Judicial Review to The Federalist, No. 78 written by Alexander Hamilton. Writing as Publius, he justifies the need for the judiciary to have an absolute void on the legislature.[1] (http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID426860_code030810630.pdf?abstractid=426860&mirid=1)
The ultimate court for deciding the constitutionality of federal or state law under the Constitution of the United States is the Supreme Court of the United States. The ultimate court for deciding the constitutionality of state law under state constitutions is the highest appellate court in each state -- usually called a Supreme Court, but also sometimes known as the Court of Appeals.
In the Federal system, courts may only decide actual controversies; it is not possible to request the Federal courts to review a law without at least one party with legal standing to engage in a lawsuit. This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for what are often described in the press as "technicalities". In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).