1 Introduction

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.

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

2. 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: Non-Substitutionary.

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...

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