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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: i. Illegality; ii. Irrationality; iii. 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): o 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): o 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. o 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.' o 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: o 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: o 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: o 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): o 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. o Interpreting X factors differently means applicants are treated differently.
2. Restraint of public bodies: o 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.' i.
ii. Jurisdictional errors. o 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. Non-jurisdictional errors. o 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. o The 'type' of case can only be determined with reference to instances of the type. o 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 choice before it whether to interfere with an inferior court on a point of law. If it chooses to interfere, it can formulate its decision...'
? He argues that it is intolerable that an individual's rights should depend on the judge that tries the case. Instead, 'no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends'. Change in doctrine: Anismic, though not formally abolishing the collateral fact doctrine, cast it into serious doubt.
? 'A tribunal may quite properly validly enter upon its task and in the course of carrying it out make a decision which is invalid - not merely erroneous. This may be described as 'asking the wrong question' or 'applying the wrong test'. o Thus, it appears that the Courts could be more intrusive in considering errors within the jurisdiction of the particular administrative body, rather than there merely being an exclusion of a judicial role once properly within the scope of decision making.
? Elliot: '[this] laid the foundation for such a step [abolition of jurisdiction distinction] to be taken]'.
? As such, Lord Reid's non-exhaustive lists of reasons for the court to conclude nullity undermined the jurisdictional/non-jurisdictional distinction. Ouster Clauses: Ouster clauses were important in this case since, as seen earlier, the relevant Act excluded Courts calling into question any determination by the Commission.
? As such, it was claimed that there was no 'determination' at all, it was instead a mere nullity - an action with no legal effect. Lord Reid followed this in saying that the word 'determination' in the statute does not include everything which purports to be a determination, but which is in fact no determination at all.
? As such, it read in a jurisdictional requirement to the Act, that decisions are 'determinations' when they have legal effect (when they are within jurisdiction).
Endicott: there is much value in finding that a 'determination' of a body may not be a 'determination', bit it remains unclear how far this can be taken.
It is clear that the Courts will be very reluctant to giver effect to an ouster clause.
? Such issues go to the root of the institutional competence contention - where legislation has specifically excluded the intervention of the Court, for them to the do so is particularly intrusive. o At the same time, it is not satisfactory for Parliament to merely block the jurisdiction of the Court.
? Circularity - it is the job of the courts, constitutionally, to decide matters of law and interpret statues. Denying this makes such a clause practically unenforceable.
? South East Asia Fire shows that these clauses are potentially effective. o However, the reasoning in this case relied on the basis of certain errors of law being non-jurisdiction, a view now undermined by Page). It seems that the best way to oust the effect of the court's jurisdiction is to strike out the availability of remedies. This leave the legally investigative nature of the courts functions intact, but takes away its teeth. There is a particular difficulty with ouster clauses in the human rights context.
? It should be noted that the cases seeking to restrict the court's jurisdiction are pre-HRA.
?? ? ? The preclusion of review may interfere with Article 6 ECHR, requiring that an independent tribunal must make a decision. o This will be relevant where the initial decision-maker does not qualify as independent under the Strasbourg jurisprudence. o Nevertheless, it is clear that the Courts are willing to interpret broadly to prevent a constitutional clash Expansion of the error of law following Anisminic: Re Racal Communications considered Anisminic as having abolished the collateral fact doctrine.
? Diplock: '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 As such, appeared that all errors of law, operative or not, could ground a quashing order for the decision of the tribunal/body.
? Similarly in O'Reilly v Mackman, Diplock claimed that: '[Anisminic] has liberated English public law from the fetters that the courts had therefore imposed upon themselves... [which consisted in] drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction and error off law committed by them within their jurisdiction.' o However, Lord Reid did still held a distinction between: (i) mistakes of law that make a decision a nullity, and (ii) mistakes of law which do not make a decision a nullity. o The problem was that he offered no guidance as to distinguishing between the two errors, leading to an interpretation that a determination is null and void if it involves any misconstruction/irrelevant consideration as to the basis of the decision. Re Racal led to a distinction between different types of bodies, giving an institutional approach as to who could competently decide questions of law and questions of fact:
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