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Administrative Law: Jurisdiction 1


This topic deals with judicial review for what Lord Diplock termed `illegality' in CCSU. In fact, it is far from clear that `illegality' is in any way sufficient as a label for the sheer variety of bases on which judicial review may be granted in this area, and it may fairly be claimed that we are in reality dealing with several interlinked heads of review simple error of law, jurisdictional review, error of fact, etc. - rather than one broad ground. Recently, courts have been keen to prioritise the idea of `abuse of power' as a distinct basis of review from error of law.

1.1 An important but problematic concept

Here we are talking about the jurisdiction of a decision maker to make certain decisions, not the jurisdiction of the court to review those decisions. The concept of 'jurisdiction' is both central to administrative law and highly problematic:It is central because it constitutes an (arguably the) organising concept around which the law of judicial review is structured.

Arguably all of Administrative law is about jurisdiction. The one and only ground under upon which the courts may intervene is that the decision maker has 'acted ultra vires' - or in other words 'exceeded his jurisdiction'.It is highly problematic for several inter-related reasons, all of which concern the inherent uncertainty and instability of the concept of jurisdiction.

It is often difficult to identify the boundary between jurisdictional and non-jurisdictional questions. This characterisation is often highly significant. The decision maker's decision on jurisdictional questions is never conclusive - it is open to the reviewing court to decide jurisdictional matters for itself.

1.2 'Jurisdictional questions' and 'merits questions'

Although we will need to qualify this point, we need to begin by understanding the difference between jurisdictional questions and merits questions. What is the fundamental distinction between these two types of questions? Most statutory powers can be broken down into an 'if...then' analysis. i.

If [a particular condition is met, or a particular state of affairs exists (e.g. that X is an 'illegal entrant')]

ii. Then [the decision maker may exercise discretion by choosing whether to, say, carry out a particular activity (e.g. detaining X)].

The first is a jurisdictional question (may it be exercised), while the second is a merits question (should it be exercised). The first question represents a limit on the DMs power
- when he addresses the first question, then, he enjoys no discretion. There is only one correct and lawful answer: the answer favoured by the reviewing court.Jurisdictional questions: Ultimately for the court (in the sense that the court has the final word over what constitutes the right answer).

This asks whether the power can be exercised. (e.g. in the case of the Home Secretary's ability to detain illegal immigrants - is this person an illegal immigrant?).

The decision maker enjoys no discretion here - either the power can or cannot be exercised in the circumstances of the particular case. This is a jurisdictional matter pure and simple. The primary defining characteristic of a jurisdictional matter, then, is that it cannot be conclusively determined by the decision maker. It follows from this that if the person concerned is not shown to be an illegal immigrant to the satisfaction of the reviewing court, then any purported exercise of the discretion to detain him will be struck down. Categorising a particular matter as jurisdictional then is highly significant - the DMs conclusions on such a matter are never conclusive - it is open to the reviewing court to decide the matter for itself. If an error is jurisdictional, the decision maker has to get it right. If he gets it wrong, he is outside his jurisdiction and the decision must be quashed.Merits questions: Ultimately for the decision-maker (in the sense that there is generally no right answer capable of being judicially imposed).

Should the power be exercised? (i.e. should this person be detained). In attempting to understand the distinction between jurisdictional and merits questions further, it is helpful to pose four questions:?Does the question have a right answer?

Jurisdictional Questions: Yes.


Merits Questions: No.

What is the court's role?

Jurisdictional Questions: is the decision maker's decision right?


Merits Questions: has the power been exercised in a lawful manner?

What is the status of the decision-maker's determination?

Jurisdictional Questions: Preliminary.


Merits Questions: Final.How can the style of review be characterised?

Jurisdictional Questions: Substitutionary. It's a very interventionist approach.


Merits Questions: NonSubstitutionary.

This means that whether a question is characterised as jurisdictional or based on merits has huge practical impacts.

1.3 How come there isn't just one jurisdictional hurdle?

According to the 'original jurisdiction fallacy', jurisdiction is established---at the outset---on a once-and-for-all basis. In other words, jurisdiction, once secured, cannot

be lost. But this view is no longer sustainable in the light of cases such as Anisminic v Foreign Compensation Commission [1969] 2 AC 147. Rather, it is now accepted that jurisdictional questions may (generally will) have to be confronted by decision-makers in the course of answering the merits question. The view that said there was only one jurisdictional hurdle - the original jurisdictional fallacy - is wrong. There are a series of jurisdictional hurdles, and jurisdiction gained at the outset can be lost by getting a subsequent jurisdictional question wrong. The initial jurisdictional hurdle is the first, 'if' question - the initial, obvious jurisdictional hurdle e.g. whether the person is an illegal immigrant. There are however subsequent jurisdictional questions encountered whilst considering the merits question (or more properly the subsidiary jurisdictional questions before the true, primary merits question - the 'then' question - should the power be exercised). These subsequent jurisdictional hurdles are questions that engage any of the grounds of judicial review. Consider, for instance, the following subsidiary questions which may arise in the course of making a decision on the merits: Must the individual concerned be given an oral hearing?Can the decision-maker take particular factual information into account?Can a legitimate expectation be departed from?Must the decision-maker disclose certain adverse evidence to the individual concerned?

What do these questions have in common? And why are they rightly characterised as subsidiary jurisdictional questions, rather than as merits questions? They are subsidiary jurisdictional questions because they too cannot be conclusively determined by the decision maker. The fact that the court feels willing to intervene and strike down a decision if these questions are answered wrongly makes them necessarily jurisdictional If these subsidiary questions are answered incorrectly, this will cause the DM to exceed his power - exceed his jurisdiction. His decision will therefore be unlawful just as though he had at the first stage erroneously concluded that he had the power to act. (Rather circular!) The rest of the course is concerned with these subsidiary jurisdictional questions. We can put them aside for now, but must remember that they are all strictly speaking jurisdictional questions that come before the true merits question.

1.4 How do we know what counts as a jurisdictional matter?

A further difficulty arises. How do we distinguish between:criteria which constitute primary jurisdictional requirements, such that their existence (or not) is ultimately a matter for the court; andcriteria which do not constitute such requirements, such that their existence (or not) is ultimately a matter for the decision-maker (provided that it complies with any relevant secondary jurisdictional requirements)

But what actually is it that constitutes the primary jurisdictional requirement? If we stick to the 'if...then' analysis, it is important to know what it is that constitutes the if part of the question.

In the example of the Home Secretary being able to detain 'illegal entrants', we can say the DM does not have the power to detain people who are not illegal entrants. Whether the person concerned is actually an 'illegal entrant' is therefore the primary jurisdictional question. But they are not always this easy to identify.

1.5 Why drawing lines is hard

We have already seen enough of the subject of jurisdiction to know two things about it:It is about drawing linesThose lines are hard to draw

Say the statute actually said that the DM has the power to detain 'dangerous illegal entrants'. Is the dangerousness of an illegal entrant a jurisdictional question that the court should have the last say on?Did Parliament intend that the DM should be able to decide who to detain out of a pool of 'dangerous illegal entrants? If so, dangerousness is jurisdictional; subject to correctness review.Did parliament intend that the DM should be able to determine which illegal entrants are 'dangerous'? If so, dangerousness is a merits question; subject to reasonableness review.

This relates back to one of our opening points: that this area of the law of judicial review, while presented as an exercise in conceptual or analytical reasoning, is really heavily influenced by considerations of policy. On this point, see further Farina (1989) 89 Columbia Law Review 452 at 452-453. (In Dropbox.) The greater the number of factors which are regarded as jurisdictional, the smaller the DM's discretion. Where we draw lines then is not so much a matter of theory so much as a matter of policy - how wide should the DM's discretion be?

2 Two overarching questions, and three contexts

Against the background of the foregoing considerations, we need to focus on two questions:How do we distinguish between jurisdictional and non-jurisdictional matters?
(And, just as importantly, have the courts articulated---and, if not, is it possible for us to articulate---intelligible and intellectually defensible criteria for the purpose of drawing that distinction?) Are there any fixed criteria we can apply in order to help us draw that distinction which can be applied in a coherent, predictable way?What are the consequences of characterising something as a jurisdictional matter? (And, again importantly, does this reflect an appropriate balance, in policy terms, between judicial control and agency autonomy?) The fact that the distinction between jurisdictional and non-jurisdictional has such wide ranging impacts in terms of review means that the motivation to strike the right balance of power sometimes leads to backwards reasoning. The court sometimes decides where the power should lie, and adopts it's reasoning on the facts to reach that conclusion.

And those questions need to be asked in three distinct (but related) contexts:


Matters of law. i.e. what is the legal definition of the term? E.g. what does 'illegal entrant' mean? These are normally jurisdictional questions.Matters of fact i.e. what are this person's characteristics? These are fact finding matters. These are sometimes jurisdictional questions.Mixed questions of fact and law (or 'questions of application', as we will call them). The fit between the legal issues and the factual circumstances - is this particular person an illegal entrant? The position is less clear here, although they are also sometimes jurisdictional.

Are these unstable distinctions? Distinctions help give shape to this area, as they inform the extent to which matters will be jurisdictional, and so determine applicable standards of review. But the reality is that it is sometimes difficult to coherently draw these distinctions - and when we attempt to, it is important to ask whether doing so sets the right standard of review in each context. TP: Once you know the reasons for a decision, you can decide the ground of review - whether it should be argued as an error of fact or error of law.

3 Questions of law

3.1 Jurisdictional and non-jurisdictional questions of law

Until quite recently, a generally applicable distinction was recognised between jurisdictional and non-jurisdictional questions of law. There were three categories; it seems, of questions of law - at least before Anisminic. a) Jurisdictional. Reviewable. b) Non-jurisdictional. Non-reviewable. c) 'Errors of law on the face of record'. Reviewable whether or not they are jurisdictional. [These are only relevant if such things as non-jurisdictional questions of law exist. If all areas of law are jurisdictional, then category (b) doesn't exist, and category (c) needn't, because it becomes redundant - all areas of law are jurisdictional.]
Jurisdictional errors of law can be seen as gateways into the decision-making process. Once you overcame them, you could make whatever errors of law you like - the nonjurisdictional errors of law. R v. Northumberland Compensation Appeal Tribunal, ex p. Shaw [1952] 1 KB 338 Case turned on the amount of compensation payable to the clerk to a hospital board in Northumberland who had lost his post in 1949 after the introduction of the NHS. Compensation Appeal Tribunal, misconstruing the regulations, made a manifest error of law. Held, the decision should be quashed. It was noted in Shaw that there are some errors of law that are non-jurisdictional. As Denning LJ put it at 346: A tribunal may often decide a point of law wrongly whilst keeping well within its jurisdiction.

The distinction between jurisdictional and non-jurisdictional questions of law was, however, highly problematic for (at least) two reasons:Inconsistency. This is the practical issue. When we say that errors of law may or may not be jurisdictional, there is a problem of inconsistency and the lack of certainty that stems from it. oFurthermore though, if we say that certain errors of law are nonjurisdictional, then different decision makers might attach different meaning to different provisions - and the court will be powerless to intervene. The finality of the DMs decisions would result in the inconsistent use of the statutory power itself.

Instability of distinction. This is a more conceptual difficulty - the distinction is notoriously difficult to draw.

In fact, the position was further complicated by the notion of non-jurisdictional but nonetheless reviewable 'errors on the face of the record', which are reviewable whether or not they are jurisdictional. (Under the new general principle they have become superfluous.) Denning LJ revived 'errors on the face of the record' in Shaw. He said that the court had 'an inherent jurisdiction to control all inferior a supervisory capacity...The control is exercised by means of a power to quash any determination by the Tribunal which, on the face of it, offends against the law' (error on the face of the record). The tribunal had made an error of law which deprived Shaw of the compensation he was legally entitled to. It would be intolerable if there were no means of correcting the error - so it was an error on the face of the record and thus reviewable. This provided a useful tool by which to review errors of law regardless of their jurisdictionality. It is now irrelevant as a category. As we'll see, one of the outcomes of these difficulties is the newly recently established general principle that, in general, all questions of law are regarded as jurisdictional.

3.2 The general principle today

The modern orthodoxy---that, in general, all questions of law are jurisdictional questions
---took some time to crystallise. Three staging-posts should be noted: Anisminic ? Pearlman ? Page Anisminic laid the foundations of the modern approach regarding errors of law, Pearlman highlighted some confusion over the extent of the Anisminic principle, and then Page essentially clarified the modern orthodoxy.The foundations of the modern approach were laid in Anisminic v Foreign Compensation Commission [1969] 2 AC 147. Anisminic is sometimes said to have established that all questions of law are jurisdictional, thereby abolishing the distinction between jurisdictional and non-jurisdictional questions of law (by means of rendering the latter category empty). But this interpretation of Anisminic is incorrect - the case didn't actually abolish the distinction, but simply laid the foundations for that step to be taken.

The claimant was an English company which owned property valued at PS4.4 million. The property had been sequestered by the Egyptian government in 1956. Money was paid over t the UK for purposes of compensation by treaty, and a statutory body was set up to distribute it. This body's provisional determination was that the claimant had

fail to establish a claim under the act, because the successor in title was not a British national, and consequently the claim didn't comply with the terms of the Order. Anisminic wanted to argue that the FCC had made an error of law, and that the court should come in and displace the decision. Elliott says that three issues should be noted about this landmark case:

1. The bold decision in this case was facilitated by the adoption of a broad conception of jurisdiction, such that a decision maker may commit a jurisdictional error of law either by embarking upon an unauthorised enquiry or by exercising its powers in an unauthorised manner - such as by breaching the principles of natural justice. The 'original jurisdictional fallacy' was rejected.

2. The concept of jurisdiction embraced in the case was central to the ultimate impact (or lack of) of the ouster clause. It was held that a 'determination' made outwith jurisdiction was not a 'determination' in the statutory sense. The ouster clause was thereby effectively neutralised.

3. The idea of a jurisdictional error of law is very clearly recognised. The misconstruction of the statute was deemed a jurisdictional error of law, so the decision could be struck down. The case did not clearly abolish the distinction between jurisdictional and nonjurisdictional errors of law. Lord Wilberforce saw merit in the maintenance of the divide
- he said that some questions of law should be capable of being conclusively determined by the decision-maker. It does however lay the foundation.In fact, the precise effects of Anisminic remained uncertain for some time, as the three-way split between the judges in Pearlman nicely illustrates.

Pearlman v. Harrow School [1979] QB 56 The county court had determined that the installation of central heating was not a 'structural alteration or addition' by a tenant under the Housing Act. Even though the Act stated that the decision of the county court would be 'final and conclusive' judicial review could still lie for error of law. Lane LJ: this is a non-jurisdictional question of law, Anisminic retained the distinction, and this was not a jurisdictional matter. Eveleigh LJ: agreed to the extent that Anisminic retained the distinction, but disagreed as to what side the facts of the case fell. He held this was a jurisdictional question of law. Lord Denning MR: reached the same outcome as Eveleigh, but said that Anisminic had articulated a general principle that all questions of law (on which the decision of the case depends) are jurisdictional. Lord Denning adopted the radical conclusion of Anisminic, that all errors of law (upon which the decision in the case depends) should render a decision liable to be quashed as ultra vires, and held that a county court's decision could be quashed for error of law. He also suggested that the very fine distinction between errors of law that entail an absence of jurisdiction and errors of law within jurisdiction should be discarded for reasons of consistency: 'the High Court should have power to put them [lower courts/tribunals that make errors of law] right...It is intolerable that a citizen's rights in point of law should depend on which judge tries his case, or in which court it is heard. The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends . If it makes

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