AN ANALYSIS OF THE CONCEPT OF JUDICIAL REVIEW AS IT RELATES TO ADMINISTRATIVE LAW

An Analysis of the Concept of Judicial Review as it Relates to Administrative Law

An Analysis of the Concept of Judicial Review as it Relates to Administrative Law

Introduction

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 norm. 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). [1]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. (Arthurs 2003)

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. 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. [2] It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions, such as a complaint to the authority itself must be fulfilled.

Discussion

Administrative law concerns the interface between the citizen and the state (the state for this purpose including governmental organisations and local authorities). Cases are usually brought in the Administrative Court (part of the High Court, Queen's Bench Division) by way of the procedure known as Judicial Review (the Court's permission is needed before an application for Judicial Review can be made). It is a particular feature of Judicial Review that proceedings must be commenced promptly. [3] A number of statutes (for example the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004) require a particular form of statutory challenge in the Administrative Court (for example to planning appeal decisions and development plan documents), whereby proceedings have to be commenced within six weeks of the relevant date.

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.[4] However, many legal systems specifically do not allow any review of primary legislation, passed by parliament. In the United Kingdom, 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. (Evans 2006)

Many of the countries whose constitutions do provide for a ...