Jurisdiction Of Judicial Review Notes

Jurisdiction of Judicial Review

‘The reality is that the conception of legality within judicial review is used as a label to cover a variety of more specific grounds of challenge relating to the rule of law.’ (Craig).

This is the first of Diplock’s three grounds of JR in GCHQ:

1. Illegality;

2. Irrationality;

3. Procedural impropriety.

Such review therefore inquires as to whether the actions of a public body were legal – whether the body had the power to act in the way it did by virtue of the type of body it is.

• It is either within the body’s limited scope of legal decision-making, if it is outside (ultra vires).

• Craig: a jurisdiction is a legal power to decide a claim or issue with legal effect.

Jurisdiction therefore relates to whether the court can review the decision at all. This is of fundamental importance because of the underlying doctrine regarding how far the judiciary should be able to review the decisions of a public body.

Distinction:

1. Jurisdictional error (review):

• This is where a public body strays out of a subject area, type of issue, type of question, that it has no authority to decide with legal effect.

2. Review of discretion (appeal):

• Review of discretion 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.

X and Y factors:

X factors relate to the preconditions that trigger executive jurisdiction for a particular action; Y factors are statements as to what the executive can actually do.

• There is an issue that the executive, itself, decides whether the X factors are satisfied.

  • As such, this gives rise to issues regarding institutional competence – who is better placed to decide the X and Y factors?

Institutional competence: which body should make the decision?

Anisminic illustrates the underlying tension between the competence of executive bodies, and the purview of the court.

• The issue was essentially one statutory interpretation, with the Foreign Compensation Act 1950 providing 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.’

  • However, the decision was held as reviewable.

• Whilst the courts act on the basis that they are effectuating the will of Parliament in reviewing public bodies, that purpose does not have inherent limits as to the extent of review.

Reasons for the Courts to display deference:

1. Lack of expertise:

• Subject matter may be specific and sensitive – the risk is that the court makes decisions about that subject area with ignorance or false assumptions of the context/the area.

2. Public resources:

• Courts have to be wary that order result in public expenditure – public bodies cannot be treated in the same way as private parties.

3. Understanding of statute policy:

• It may well be the case that, by virtue of their expertise, executive bodies (especially specialist ones) have a better understanding of the policy under the statute.

Reasons for the Courts to be more intrusive:

1. Uniformity under the law (risk of unpredictability):

• Definition of terms and so on may differ in particular contexts, but it is unsatisfactory for the same word to have different meanings, and for inconsistency to carry legal effect.

• Interpreting X factors differently means applicants are treated differently.

2. Restraint of public bodies:

• The policy concerns can be said to go the other way – need to have some limitations on the ambit of public bodies, and it is of concern that public bodies are able to make decisions with legal effect.

Most of the contention is in attempting to find a middle ground.

• Notable that remedies in administrative law are discretionary.

Errors of Law

The collateral fact doctrine:

Based on established kinds of cases where the courts are permitted to intervene.

• As such, decisions found to be of a kind recognised as reviewable were considered jurisdictional; those that were outside this recognised ambit were non-jurisdictional.

Craig: ‘what the preliminary or collateral fact doctrine sought to do was to distinguish 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.’

1. Jurisdictional errors.

• Errors relating to the type, or scope, of a case – if the type or scope of the case was within the scope of that tribunal, then the subsequent decision could not be reviewed.

2. Non-jurisdictional errors.

• Errors relating to the truth or detail of a case.

This test was, previously, the orthodoxy – however, it was constantly used as result-based reasoning.

• Whenever the Courts wanted to review a decision, they held it as jurisdictional; when they wanted to leave it alone, they held it as non-jurisdictional.

  • For example, in Lane’s dissent in Pearlman v Keepers, he argued that all the judge had done in the case was to ‘come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law.’

However, the doctrine is fundamentally flawed.

• The distinction between types and incidences is impossible to draw.

  • The ‘type’ of case can only be determined with reference to instances of the type.

  • Only really useful when the answer is obvious; yet, in such cases, do not need it in the first place.

• Wade and Forsyth made these points: the concept of jurisdictional error has been stretched to breaking point, and ‘it requires only a simple verbal manipulation to represent any error of law as the result of the tribunal asking itself a wrong question or imposing some wrong requirement… any error of law could be shown to involve an excess of jurisdiction.’

Denning in Pearlman was honest about this and suggested the test should be discarded: ‘so fine is the distinction that in truth the High Court has a...

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