Dumitru Alexandru-Andrei, group 102, prof-coord.

Intorsureanu Elena

The judicial review in UK vs. The judicial review

in Romania

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

I.The judicial review in UK.

Judicial review is a procedure in English administrative law
by which the courts in England and Wales supervise the
exercise of public power on the application of an individual. A
person who feels that an exercise of such power by a
government authority, such as a minister, the local council or a
statutory tribunal, is unlawful, perhaps because it has violated
his or her rights, may apply to the Administrative Court (a
division of the High Court) for judicial review of the decision
and have it set aside (quashed) and possibly obtain damages.
A court may also make mandatory orders or injunctions to
compel the authority to do its duty or to stop it from acting
illegally.
Unlike the United States and some other jurisdictions, the
English doctrine of parliamentary sovereignty means that the
law does not allow judicial review of primary legislation (laws
passed by the Parliament of the United Kingdom), except in a
few cases where primary legislation is contrary to the law of
the European Union. A person wronged by an Act of Parliament
therefore cannot apply for judicial review except in these cases.
The English constitutional theory, as expounded by A.V.
Dicey, does not recognise a separate system of administrative
courts that would review the decisions of public bodies (as in
Romania and many other European countries). Instead, it is
considered that the government should be subject to the
jurisdiction of ordinary Common Law courts. At the same time,
the doctrine of Parliamentary sovereignty does not allow for the
judicial review of primary legislation (Acts of Parliament). This
limits judicial review in English law to the decisions of public
bodies and secondary (delegated) legislation, against which
ordinary common law remedies as well as special "prerogative
orders" are available in certain circumstances.

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

The constitutional theory of judicial review has long been

dominated by the doctrine of ultra vires, under which a
decision of a public authority can only be set aside if it exceeds
the powers granted to it by Parliament. The role of the courts
was seen as enforcing the "will of Parliament" in accordance
with the doctrine of Parliamentary sovereignty. However, the
doctrine has been widely interpreted to include errors of law
and of fact and the courts have also declared the decisions
taken under the Royal Prerogative to be amenable to judicial
review. Therefore it seems that today the constitutional position
of judicial review is dictated by the need to prevent the abuse
of power by the executive as well as to protect individual
rights.
Procedural requirements.
Under the Civil Procedure Rules a claim (application) for
judicial review will only be admissible if permission (leave) for
judicial review is obtained from the High Court, which has
supervisory jurisdiction over public authorities and tribunals.
Permission may be refused if one of the following conditions is
not satisfied:
The application must be made promptly and in any event
within three months from the date when the grievance
arose. Note that legislation can impose shorter time limits
while a court may hold that an application made in less
than three months may still be not prompt enough.
The applicant must have sufficient interest in a matter to
which the application relates. This requirement is known
as the requirement of locus standi, or standing.
The application must be concerned with a public law
matter, i.e. the action must be based on some rule of
public law, not purely tort or contract.

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

However, the Court will not necessarily refuse permission if

one of the above conditions is in doubt. It may, in its discretion,
examine all the circumstances of the case and see if the
substantive grounds for judicial review are serious enough.
Delay or lack of sufficient interest can also lead to the court
refusing to grant a remedy after it had considered the case on
the merits. The pre-action protocol states that it is usual for the
Claimant to write a letter before claim to the proposed
Defendant. The purpose of the letter is to identify the issues in
dispute and to avoid litigation where possible. The protocol
specifies a template for the letter. It is usual to allow 14 days
for a response.
Amenability to judicial review.
The decision complained of must have been taken by a
public body, i.e. a body established by statute or otherwise
exercising a public function. In R v Panel for Takeovers and
Mergers Ex p Datafin [1987] 1 QB 815, the Court of Appeal held
that a privately established panel was amenable to judicial
review because it in fact operated as an integral part of a
governmental framework for regulating Mergers and Takeover,
while those affected had no choice but to submit to its
jurisdiction.
Ouster clauses.
Sometimes the legislator may want to exclude the powers
of the court to review administrative decision, making them
'final', 'binding' and not appealable. R (Cowl) v Plymouth City
Council. However, the courts have consistently held that none
but the clearest words can exclude judicial review. When the
Government wanted to introduce a new Asylum and
Immigration Act containing such clear words, members of the
judiciary protested to the extent of saying that they will not
accept even such an exclusion. The Government withdrew the

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

proposal.The courts however do uphold time limits on

applications for judicial review.
Exclusivity rule.
The House of Lords held in O'Reilly v Mackman [1983] 2 AC
237 that where public law rights were at stake, the claimants
could only proceed by way of judicial review. They could not
originate their action under the general civil law procedure,
because that would be avoiding the procedural safeguards
afforded to public authorities by the judicial review procedure,
such as the requirement of sufficient interest, timely
submission and permission for judicial review. However, a
defendant may still raise public law issues as a defence in civil
proceedings. So for example, a tenant of the public authority
could allege illegality of its decision to raise the rents when the
authority sued him for failing to pay under the tenancy
contracts. He was not required to commence a separate judicial
review process (Wandsworth London Borough Council v Winder
(1985)). If an issue is a mix of private law rights, such as the
right to get paid under a contract, and public law issues of the
competence of the public authority to take the impugned
decision, the courts are also inclined to allow the claimant to
proceed using ordinary civil procedure, at least where it can be
demonstrated that the public interest of protecting authorities
against frivolous or late claims has not been breached (Roy v
Kensington and Chelsea and Westminster Family Practitioner
Committee (1992), Trustees of the Dennis Rye Pension Fund v
Sheffield City Council (1997)).
II. The judicial review in Romania.
History.
In Romania, the constitutional review of laws was
enshrined by means of judicial interpretation ever since 1912,

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

when the High Court of Cassation and Justice upheld the

judgment delivered in first instance by the Ilfov County Court in
the famous "Case of the trams", establishing the courts power
to investigate compliance of laws with the Constitution.
Later, following the European model of constitutional
justice, the Constitutions of 1923 and 1938 provided that only
the Court of Cassation and Justice, sitting in joint Divisions, has
the right to decide on the unconstitutionality of laws and to
declare them inapplicable in the respective case. In this
respect, the provision in Article103 (1) of the Constitution of
1923, later Article 75 of the Constitution of 1938, stated that
"judgment on the unconstitutionality of statutes shall be
confined to the instant case." These Constitutions have
established thus a concentrated constitutional review exercised
by the Supreme Court.
Constitutions of the communist regime created only an
appearance in terms of constitutional review of laws, for
example, under the 1965 Constitution, the review was
exercised by the legislative power.

1989 Revolution marked the transition to a democratic political

regime. The Constituent Assembly - elected a Committee for
the preparation of the draft Constitution, which was made up of
Deputies, Senators, as well as of a number of experts in
constitutional law and other social-humanistic sciences adopted at its meeting of 21 November 1991, the new
Constitution of Romania, the text of which was published in the
Official Gazette of Romania, Part I, no. 233 of 21 November
1991.
According to Article 149 of the Constitution of 1991, it
entered into force after its approval by means of the national
referendum dated 8 December 1991.

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

Article 152 of the Constitution provided that "within six

months from the date of coming into force of the Constitution,
there shall be established the Constitutional Court". Thus, in
June 1992, Judges of the first Constitutional Court were
appointed for periods of three, six, and nine years, respectively.
For each of these terms, the President of Romania, the
Chamber of Deputies and the Senate appointed one Judge
each. This method of appointment allows renewal of the
Constitutional Court every 3 years, which contributes to
ensuring judicial independence from the public authorities that
have appointed them.The first decisions of the Constitutional
Court were delivered on 30 June 1992.
In 2003, following the revision of the Basic Law, Article 142
(1)enshrined the Constitutional Courts role as guarantor for the
supremacy of the Constitution, entrusting the Court with new
powers, which increaseits importance within the institutional
edifice of the rule of law.

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

The Courts powers.

The Constitutional Court is the sole authority of
constitutional jurisdiction in Romania, and it shall be
independent of any other public authority.
At the level of provisions enshrined by the Basic Law,
regulations on the Constitutional Court are to be found under
the six Articles in Title V (Articles 142-147, in the current
numbering given after the revision of the Constitution), which
are further complemented by Law No. 47/1992 on the
Organization and Operation of the Constitutional Court,
republished.
To fulfil its functions as the "guarantor for the supremacy of
the Constitution", the Court discharges the following powers
prescribed by Article 146 of the Basic Law:
a) It adjudicates on the constitutionality of laws, before
promulgation, upon reference made by the Parliament of
Romania, by one of the President of either Chamber of
Parliament, by the Government, by the High Court of Cassation
and Justice, by the Advocate of the People (Ombudsman), by a
number of at least fifty Deputies or at least twenty-five
Senators, as well as, ex officio, on the initiative to revise the
Constitution;
b) It adjudicates on the constitutionality of treaties or other
international agreements, upon notification by one of the
President of the two Chamber, by a number of at least fifty
Deputies or at least twenty-five Senators;
c) It adjudicates on the constitutionality of the Standing Orders
of the Parliament, upon notification, by the President of either
Chamber, by a parliamentary group or by a number of at least
fifty Deputies or at least twenty-five Senators;

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

d) It decides on objections as to the unconstitutionality of laws

and ordinances, brought up before courts of law or of
commercial arbitration; the objection of unconstitutionality may
also be brought up by the Advocate of the People;
e) It resolves legal disputes of a constitutional nature between
public authorities, at the request of the President of Romania,
one of the Presidents of the two Chambers, the Prime Minister,
or of the President of the Superior Council of Magistracy.
f) It guards the observance of the procedure for the election of
the President of Romania and confirms the ballot returns;
g) It ascertains the circumstances which justify the interim in
the exercise of office of President of Romania, and reports its
findings to Parliament and the Government;
h) It gives the advisory opinion on the proposal to suspend the
President of Romania from office;
i) It guards the observance of the procedure for the
organization and holding of a referendum, and confirms its
returns;
j) It checks on compliance with the conditions for the exercise
of a legislative initiative by citizens;
k) It decides on challenges dealing with the constitutionality of
a political party;
l) It carries out also other powers as provided by the Court's
organic law.
According to the law, the Constitutional Court competence
cannot be contested by any public authority, the Court alone
being entitled to decide thereupon.
ORGANISATION OF THE CONSTITUTIONAL COURT

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

The Constitutional Court consists of nine Judges appointed for a

nine-year term of office that cannot be either extended or
renewed.
The Constitutional Court carries on its activity in the Plenum,
and adopts any of its acts by a majority vote of the Judges, save
where otherwise provided by the law.
The quorum for the Plenum is two-thirds of its members.
Judges are bound to express their vote, whether affirmative or
negative, and no abstention shall be allowed on their part.
The Plenum may take every necessary step to ensure smooth
operation of the Constitutional Court. Its competence includes the
adoption of the Rules on the organisation and functioning of the
Court, the approval of the budget, of the plan of international
relations etc.
The President of the Constitutional Court is elected from
among the Judges, by their secret ballot, for a period of three
years, within five days from the date of the Court renewal. The
President co-ordinates the activity of the Constitutional Court,
convenes and chairs over sessions of the Court, and also fulfils
the other powers stipulated by the Law on the Organisation and
Operation of the Constitutional Court, as well as in the Standing
Rules.
The Constitutional Court personnel consists of the body of
assistant-magistrates who carry out their activity under the
direction of the President of the Court, and of the General
Secretariat that ensures services required for the functioning of
the Court. The structure of the Constitutional Court Personnel is
regulated under Law no.124/2000.

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

Dumitru Alexandru-Andrei, group 102, prof-coord. Intorsureanu Elena

Bibliography:
1. Aileen Kavanagh, Constitutional Review under the UK Human Rights Act,p.12-20,2535,39-47,123-126.
2. Drept Constitutional si institutii politice. Ioan Muraru, Elena-Simina Tanasescu,ed
13.vol 1, 2008,Sectiunea aV-a.Controlul constitutionalitatii legilor.p.69-80.
3. www.ccr.ro
4. www.ukconstitutionallaw.org