A more recent version of these Jurisdiction notes – written by Oxford students – is available here.
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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: o 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. o 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 : 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. o 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: o 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. o 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." o Denning in Pearlman v Keepers : "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: o 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." o 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  (was the interpretation of the term 'structural alteration' in a statute a jurisdictional error?) CA: disagreed, majority through it was, Lord Lane dissented:
Lane: if this is held to be a jurisdictional error of law, then the distinction is meaningless: "it seems to be that if this judge is acting outside his jurisdiction then so is every judge who comes to a wrong decision on a point of law."
? Everleigh: accepted the distinction, but thought it was a jurisdictional error as "this was a collateral matter. It had nothing to do with the merits of the case."
? Denning: Distinction is meaningless and consistency justifies all errors of law to be subject to JR. The HL in Recal considered Anisminic to have abolished the collateral fact doctrine, at least as it relates to administrative tribunals and authorities:
?????Re Racal Communications : DPP argued that a judge's misconstruction of the Companies Act 1948 was a jurisdictional error of law. Lord Diplock: o Administrative tribunals and authorities any error of law can be reviewed, presumption that Parliament did not intend them to authoritatively determine points of law, but this can be rebutted by clear statutory wording. "The break-through made by Anisminic was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished.' o Inferior courts no presumption, rather a matter of statutory construction (did Parliament intend them to settle points of law?), error of law within jurisdiction is still a possibility here. o High Courts: no possibility of JR, just statutory appeal. Lord Diplock's comment in O'Reilly v Mackman  seemed to extend the Anisminic decision to inferior courts as well as administrative tribunals and authorities: "Anisminic has liberated English public law from the fetters that the courts had imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned." ALL ERRORS OF LAW ARE SUBJECT (IN PRINCIPLE) TO JR Turning point came in Page when it was held that the collateral fact doctrine was obsolete:
? Page : was the Visitor of Hull University's interpretation of University statutes open to review (he had made a determination that 'redundancy' was within the meaning of 'good cause' for ending a staff employment contract)? Lord B-W: o General rule: "In general, any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for errors of law." This is because "Parliament had only conferred the DM power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires." o Specific system of rules: not all bodies are subject to JR, specifically those dealing with domestic law (i.e. a specific set of rules, such as those of a University), as such the Visitor's decision was not open to JR. The courts have no cognizance of such rules so "he cannot be acting ultra vires and unlawfully in applying his view of the domestic law in reaching his decision." Benefits to "an informal system which produces a speedy, cheap and final answer to internal disputes."1 Limits following Page: (i) error must be causative (affect the decision itself); (ii) not all bodies are subject to JR (e.g. those adjudicating domestic rules); (iii) High Court decisions not subject to review; (iv) remedies are discretionary.
1 Note Lord Slynn and Mustill dissent on this point; don't think the Visitor should be immune from review --- "I can see no reasons in principle for limiting the availability of quashing orders to a patent excess of power."
Some issues with Page:
?? ? ?It may have merely shifted the issue onto the law / fact distinction.
?? ? ?Not obvious that courts should be the only bodies to conclusively determine questions of law . In the US, Chevron USA v National Resources Defence Council  holds that courts should only substitute their interpretation of statutory terms where it is apparent that the legislature had a specific intent as to meaning. If it does not, then DM should be allowed to adopt any rational interpretation. o Sunstein: US approach fits with agencies' specialized competence and political accountability. o However, reliance on legislative intention (hard to discern) might be a poor substitute for engaging with a richer set of concerns relating to justiciability / relative institutional competence. o Farina: (argues against Sunstein): separation of powers may favour court supervision: "if Congress chooses to delegate regulatory authority to agencies, part of the price of delegation may be that the court, not the agency, must hold the power to say what the statute means."
? Endicott: Anisminic was the only authority for abolishing the distinction and it does not support the conclusion --- counsel in that case had asked HL to abolish the distinction, but HL had refused. Further, no independent rationale is given for the general rule merely that an error of law should be quashed because it is an error of law. Elliott: Lord B-W's exception for systems of domestic rules implies there are situations in the realm of public law where the courts will not intervene on a point of law "the general approach, which holds that errors of law are jurisdictional, may (exceptionally) yield in the face of practical considerations." Inferior courts post Page: In differentiating between inferior courts and administrative tribunals / other DMs, Recal was concerned with institutional competence --- which bodies are competent to authoritatively determine issues of law (e.g. statutory interpretation)? However, Recal might be criticized for drawing the line in a formulistic way --- as Cart recognizes, some tribunals may have specialized institutional competence. The SC take a pragmatic approach in Cart --- JR of UT decisions only where issue is important:
? Cart : individuals who had been refused permission to appeal by the Upper Tribunal sought JR of that decision. Was JR of this decision by the High Court possible? SC: JR is only available if there is some "important point of principle or practice... or another compelling reason." Issue in Cart was the appropriate role for JR in the tribunals system. Three paths available: o JR is excluded: Gov. argued designation of UT as a 'superior court of record' rendered it immune from JR. Rejected as Parliament can only exclude JR (if at all) by use of explicit language o Full JR is available: constitutional case for full JR is that independent courts must have responsibility for ensuring executive decisions are taken in accordance with law; but this is weakened when applied to tribunals and particularly the UT. o JR remained a possibility, but only in some categories of case: path taken by the SC; JR is available in circumstances that basically align with the second-tier appeals criteria. Whether UT is susceptible to JR and whether it can commit errors of law are two sides of the same coin:
? Sedley LJ (CA) nailed his nailed his colours to the mast in doctrinal terms --- his judgment reinstated the distinction between jurisdictional / non-jurisdictional error of law: for him, the UT had unusually broad jurisdiction, which meant some errors of law were within their jurisdiction.
SC seems to reject doctrinal tools such as jurisdiction --- which promise but often fail to deliver a priori guidance as the reach of JR --- in favour of ex post considerations pertaining to the importance of issues raised by the case. Three such factors are apparent from Cart: o Type of interests served by onward challenges: errors of law which only impact individual decisions will not be subject to JR, but errors of law of a broad public interest will.
? However, seems to beg the question: why is JR rationed in a way which prioritizes broad public purposes to private interests? Answer is that the SC recognize the need for proportionate dispute resolution --- need for efficient allocation of judicial resources. o Limited judicial resources: Hale "There must be a limit to the resources which the legal system can devote to the task of trying to get the decision right in any individual case." This recognizes that no decision-making system is perfect and a certain level of error must be tolerated, because the costs of correcting every error would be disproportionate given available judicial resources. o Tribunal expertise: SC respects the expert and specialist nature of the UT. This merits a posture of judicial restraint. Indeed, Lord Phillips indicates that a point may come where JR of errors of law is inappropriate (i.e. as the expertise / competence of the UT increases) but for now some judicial oversight is needed.
Note: Cart can be criticized in that: (i) "an important point of principle or practice" is difficult to define; (ii) seems to move back towards collateral fact doctrine; (iii) possible injustice to individuals. Barber: post Cart we have full review of errors of law in some areas, but CFD in others (e.g. for review of the UT). Jones : J sought JR of a decision by the First Tier Tribunal that he did not fall within the definition of 'victim of a crime of violence' so he could claim compensation under a statutory scheme. SC: applied the decision of the FT. Lord Hope: potential for inconsistencies is limited because the UT can "develop structured guidance on the use of expressions which are central to the scheme ... reducing the risk of inconsistent results by different panels [of the FT]." Therefore, "the interpretation and application of a specialized statutory scheme" should be "primarily for the tribunals, not the appellate courts."
?????He suggests that "a pragmatic approach should be taken to the dividing line between law and fact, so the expertise of tribunals [at both UT and FT level] ... can be used to best effect." Reasonableness test?
South Yorks establishes that some statutory terms can bear more than one reasonable interpretation:
? South Yorkshire Transport : issue was whether a merger affected a 'substantial part of the UK'. Lord Mustill: 'substantial' could have a range of possible meanings and there may be multiple valid legal (but different) answers; what matters is that the answer given is within this range. o As here, where the statutory wording is ambiguous, "the court is entitled to substitute its opinion for that of [the DM] ...only if the decision is so aberrant that it cannot be classed as rational."2 o Although the court will identify the criterion for judgment (e.g. the meaning of 'substantial')
2 DJ: this appears to be incorporating rationality review into the context of jurisdiction.
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