Jurisdiction Notes

JURISDICTION OF JUDICIAL REVIEW

JR ensures that decision makers do not transgress the limits on their power, as limited by express / implied terms of the statute conferring power, and general principles such as natural justice and reasonableness.

Provided a DM remains within the limits of his jurisdiction, the courts should not interfere, if the DM exceeds it then the courts should strike down his decision. Distinction between:

• Jurisdictional error (review): DM transgresses the limits of the power conferred on him, by straying out of a subject area, type of issue, type of question, i.e. has no authority to decide with legal effect.

• Review of discretion (appeal): concerns the merits of a particular decision; this is not within the jurisdiction of the court since it is not for them to review the substance of a decision.

Institutional competence: which body should make the decision?

Fine line: jurisdictional and non-jurisdictional issues: In relation to any executive action, the more factors that are regarded as jurisdictional, the smaller the decision-maker’s discretion. If too many factors are regarded as jurisdictional, then everything becomes a decision for the courts. Too far the other way, and the DM can set the limits of his own powers and can exceed statutory authority (creating RL issues).

Anisminic illustrates the tension between the competence of executive bodies and the purview of the court:

• Anisminic [1969]: essentially an issue of statutory interpretation — the Foreign Compensation Act 1950 provided that “the determination by the commission of any application made to them under this Act shall not be called in question in any court of law.” HL: decision was reviewable —whilst the courts act on the basis that they are effectuating the will of Parliament in reviewing public bodies, that purpose does not impose inherent limits on the extent of review.

  • Although note the court did not overtly override Parliamentary Sovereignty here —they used statutory interpretation to find that a ‘determination’ made outside jurisdiction was not a determination within the statutory meaning.

Reasons for the court to display deference:

1. Lack of expertise: subject matter may be specific and sensitive.

2. Public resources: court interference can disrupt plans for public expenditure — public bodies cannot be treated in the same way as private parties.

3. Understanding of statute policy: may well be that executive bodies have a better understanding of the policy under a statute.

Reasons for the Courts to be more intrusive:

1. Uniformity under the law (risk of unpredictability): Definitions may differ in particular contexts, but unsatisfactory for same word to have different meanings / for inconsistency to carry legal effect.

2. Restraint of public bodies: there needs to be some limit on the ambit of public bodies; it is of concern that public bodies are able to make decisions with legal effect.

Most of the law in this area attempts to find a middle ground —notable that remedies are discretionary.

ERRORS OF LAW

Current position (following Page): all errors of law are in principle reviewable (subject to limitations).

COLLATERAL FACT DOCTRINE (OLD LAW)

Regarded some errors of law as non-jurisdictional:distinction between errors going to the kind of case (jurisdictional error, asks ‘was the kind / type of case within the scope of the tribunal’?) and errors as to the situation to be determined (non-jurisdictional, truth / detail of case).

Craig: collateral fact distinguishes “those elements within the bracket which could be regarded as conditioning the power of the tribunal to go and consider the merits from the merits themselves.”

Problems with the collateral fact doctrine:

• Line between ‘types’ and ‘situations’ is impossible to draw:

  • Craig: “line is impossible to draw with any certainty, because the definition of ‘type’ or ‘kind’ is inevitably comprised of discretions in the statute of the ‘situation’ which the DM has to determine. The former represents the sum, the latter the parts.

  • I.e. the type of case can only be determined with references to instances of type.

• Fine line gave courts scope for results-based reasoning: whenever courts wanted to review an error of law they would hold it as jurisdictional and vice-versa. Wade and Forsyth: “it requires only a simple verbal manipulation … any error of law could be shown to involve an excess of jurisdiction.”

  • Denning in Pearlman v Keepers [1979]: “so fine is the distinction that in truth the High Court has a choice before it whether to interfere with an inferior court on a point of law.”

• Equality problem: if a court cannot intervene to correct DM’s non-jurisdictional errors of law, then they remain uncorrected and different DMs may attach different meanings to the same legal provision —the outcome of a case may therefore depend on which DM handles it. Thus, Denning in Pearlman: it is intolerable that an individual’s rights should depend on the judge who tries a case: “no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends.”

Change of doctrine in Anisminic

Anisminic (facts above) did not formally abolish the collateral fact doctrine, but did cast it into doubt:

• HL undermined the doctrine by recognizing that an error of law within the jurisdiction of a DM could be subject to JR:

  • Reid: “there are many cases where, although the [DM] had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity.”

  • Wilberforce: “cases in which a [DM] has been held to have passed outside its proper limits are not limited to those in which it had no power to enter upon its inquiry or its jurisdiction.”

However, Anisminic left uncertainty in its wake about whether non-jurisdictional errors survived. For example: Pearlman v Keepers [1979] (was the interpretation of the term ‘structural alteration’ in a statute a...

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