Judicial Review of Administration

Judicial review of administration is, in a sense, the heart of administrative law. It is certainly the most appropriate method of inquiring into the legal competence of a public authority. The aspects of an official decision or an administrative act that may be scrutinized by the judicial process are the competence of the public authority, the extent of a public authority's legal powers, the adequacy and fairness of the procedure, the evidence considered in arriving at the administrative decision and the motives underlying it, and the nature and scope of the discretionary power. An administrative act or decision can be invalidated on any of these grounds if the reviewing court or tribunal has a sufficiently wide jurisdiction. There is also the question of responsibility for damage caused by the public authority in the performance of its functions.

In judicial review of administration at a national level, a country’s history, politics, and constitutional theory all play their part. There are, broadly, three major systems: the common-law model; the French, or council of state, model; and the procurator model.

Task 12. Read the following passage dealing with the origins and modification of the common-law system and make its summary.

The common-law system originated in England in the Middle Ages. In the 17th century relations between the courts and the executive developed into a constitutional struggle between the Stuart kings and the judges over the judges' right to decide questions affecting the royal power and even to pronounce an independent judgment in cases in which the king had an interest. In the constitutional conflict that took place a generation later, the judges and the lawyers made common cause with Parlia­ment against Charles I, and eventually the independence of the judges was established. Henceforth there was to be one system of law to which all would owe obedience. As a result, the executive possessed no inherent powers other than those subject to the rule of law inasmuch as legislation now had to emanate from the crown in Parlia­ment. In addition, the judges were expected to protect the subject against the executive. A more intangible con­sequence was the belief that “government” and “law” were often thought to be opposed to one another.

These developments established the principle that the executive should never interfere with the judiciary in the exercise of its functions. This was, indeed, almost the only strict application in England of the doctrine of the separation of powers. On the other hand, it was regarded as right and proper that the judiciary should interfere with the executive whenever a minister or a department was shown to have acted illegally.

The common-law system has been extensively modi­fied in the course of the 20th century. Until recently it did not correspond to the realities of the situation in Britain because, prior to the Crown Proceedings Act, 1947, it was not possible to sue ministers and their de­partments in tort; government ministers in Britain are considered ministers of the crown, and an ancient legal doctrine holds that “the king can do no wrong”. More­over, the development of state-provided social services has been accompanied by the creation of a large number of administrative tribunals to determine disputes between a government department and a citizen. They provide a method of administrative adjudication far cheaper, more informal, and more rapid than that offered by the courts; the members are persons possessing special knowledge and experience of the subject dealt with; they do not have to follow the strict and complex rules of evidence that prevail in the courts; and it is possible to introduce new social standards and moral considerations to guide their decisions.

In the United States the courts review administration much more comprehensively than in Britain. Neverthe­less, much adjudication is now performed by public au­thorities other than the courts of law. The movement toward administrative tribunals began with the Interstate Commerce Act (1887), establishing the Interstate Commerce Commission to regulate railways and other carriers. This law introduced a new type of federal agen­cy, outside the framework of the executive departments and largely independent of the president.

In France the separation of powers was given a place of honour in the Declaration of the Rights of Man and of the Citizen (1789). In the French view, however, if a court were permitted to review an administrative act or decision, it would contravene the separation of powers as much as if the executive could override the decision of a court. Just as an appeal from a court lies to a higher court, the reasoning goes, so an appeal from an adminis­trative authority should lie to a higher administrative authority. Only thus would the true separation of pow­ers be observed.

Herein lies the explanation of administrative law as a system of law separate from the body of law administered in the courts. A law of August 1790 declared that the judiciary was distinct from and would always remain separated from the executive. It forbade judges, on pain of dismissal, to interfere in any way with the work of administrative bodies. In October 1790 a second law stated that under no circumstances should claims to annul acts of administrative bodies fall within the jurisdiction of the courts. Such claims should be brought before the king as head of the general administration.

Several other countries have followed France in establishing councils of state. Among them are Italy, Greece, Belgium, Spain, Turkey, Portugal, and Egypt.

The third system for ensuring administrative legality, called the Procuracy, was founded in Russia by Peter the Great in 1722, who intended it to be the “eye of the tsar”.

The Procuracy was abolished in November 1917 but revived in 1922. The Soviet constitution charged the procurator general with the general duty of supervising the observance of the law by all ministries and institutions subordinate to them as well as by individual officials and citizens. The procurator general was appointed by the Supreme Soviet for five years. He appointed subordinate procurators at all administrative levels, from union republic to district and town.

The functions actually performed by the procurator underwent many fluctuations and vicissitudes after 1922. Finally, the position of the Procuracy was laid down in a union law of May 24, 1955, and in a decree of the Presidium of the Supreme Soviet made on April 7, 1956.

The procurator was not the president of a court or a tribunal but rather a watchdog of legality. His organiza­tion comprised a department for general supervision; a bureau of investigation for the supervision of prelimi­nary inquiries in criminal matters; a department for the supervision of investigations carried out by the KGB (Committee for State Security); departments to super­vise criminal and civil proceedings in the courts; a de­partment to supervise prisons, compulsory labour cen­tres, and the like; and departments for statistics, admin­istration, and research.

Since the Procuracy was not a court, it could not make a binding decision. This point was emphasized by Article 58 of the 1977 constitution, giving citizens the right to take complaints against administrative actions to the courts. The normal procedure (apart from cases of dere­liction involving a criminal prosecution) was for the proc­urator to protest against any illegality that he detected or that was brought to his notice or to initiate disciplin­ary action against an erring official.

The ombudsman is a part of the system of administra­tive law for scrutinizing the work of the executive. He is the appointee not of the executive but of the legislature. The ombudsman enjoys a large measure of independence and personal responsibility and is primarily a guardian of correct behaviour. His function is to safeguard the interests of citizens by ensuring administration accord­ing to law, discovering instances of maladministration, and eliminating defects in administration. Methods of enforcement include bringing pressure to bear on the responsible authority, publicizing a refusal to rectify injustice or a defective administrative practice, bringing the matter to the attention of the legislature, and insti­gating a criminal prosecution or disciplinary action.