JURISDICTION

Introduction

When conducting judicial review, the central concern of the courts is to identify whether the decision-maker has acted (or is proposing to act) beyond these limits, i.e. beyond its jurisdiction. Jurisdiction is defined by (i) the express terms of the statute which confers it, (ii) the implied terms of the statute, and (iii) general principles like natural justice.

Distinction between jurisdictional and merits review:

1. May a power be exercised? (a jurisdictional question)

2. If so, should it be exercised? (a merits question)

PQ Approach

Errors of law

R v Lord President of the Privy Council, ex p Page: The general principle is that errors of law are jurisdictional and therefore reviewable on a correctness standard: “in general any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law.”

There are exceptions.

1. Peculiar domestic rules

Page: Errors of laws which are “not the general law of the land but a peculiar, domestic law of which [the decision-maker] is the sole arbiter and of which the courts have no cognisance” are not reviewable. This is also because of practical considerations such as speed and cost to safeguard “an informal system which produces a speedy, cheap and final answer to internal disputes”.

2. imprecise statutory wording reasonableness standard

South Yorkshire Transport: if the statutory criterion is “so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case”, the court must avoid “the dangers of taking an inherently imprecise word, and by redefining it by thrusting on it a spurious degree of precision”. Accordingly, “the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot classified as rational”. Any reasonable construction by the decision-maker will be lawful.

On the facts, MMC could investigate a matter if “a substantial part of the UK was affected” (Fair Trading Act 1973). C, a public transport company, acquired other bus companies; this affected 1.65% of the area of UK. Held: a reasonable construction will do.

3. Institutional status of the decision-maker

Re Racal Communications Ltd: The high court cannot commit a jurisdictional error, so there can be no question of judicial review of the High Court or High Court judges acting judicially.

Re Racal Communications Ltd: More generally, if Parliament decides to confer upon administrative tribunals or authorities the power to decide questions of law and fact, this requires clear words, for they are not courts of law. By contrast, if Parliament decides to confer upon courts of law decision-making powers, Parliament can be taken to have conferred upon these courts powers to decide questions of law and fact.

Is the Upper Tribunal—a statutory body designated as a “superior court of record”—subject to judicial review? It hears appeals against first-instance tribunal decisions and has statutory power to hear certain categories of judicial review cases in replacement of the High Court.

R (Cart) v Upper Tribunal: The UT will not generally be subject to judicial review, except in exceptional circumstances. Judicial review of the Upper Tribunal is limited in accordance with the second-tier appeals (to the CA) criteria (s 55, Administration of Justice Act 1999), so that decisions of the UT that are excluded from the ordinary appeal route can be judicial reviewed only when they raise important points of principle or practice, or if there was some other compelling reason.

Applying statutory criteria to the facts

The court may take a correctness or reasonable standard here. On the one hand, courts will impose a correctness standard

• R v. Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek

‘if a certain state of facts has to exist before an inferior tribunal have jurisdiction, they can inquire into the facts in order to decide whether or not they have jurisdiction, but cannot give themselves jurisdiction by a wrong decision upon them; and this court may, by means of proceedings for [a quashing order], inquire into the correctness of the decision.’

• Khawaja v Secretary of State for the Home Department (1984)

Facts: The applicants were detained and removed using powers conferred on immigration officials to detain or deport illegal entrants. The issue is whether the courts can justify authorising the removal of a person whom an immigration officer on reasonable (but not necessarily correct) grounds believes to be an illegal entrant.

Verdict: Successful. An incorrect removal was not permitted. The courts can go beyond a reasonableness standard to a correctness standard when examining how a decision-maker has answered an application question. It can quash the detention order where the evidence was not such as the authorities should have relied on, where the evidence does not justify the decision, or where there is procedural irregularity.

Lord Scarman: A key consideration was that the allegation was serious and personal liberty, a critical value, was at stake.

Commentary: Beatson cautions that the courts should not always adopt a strict correctness standard as it risks overextending judicial supervision so as to defeat legislative intentions in allocating the implementation of a policy to an administrative body. An alternative is a reasonableness standard- decision-makers act lawfully as long as, in deciding whether the facts suit the relevant statutory criterion, they remain within a ‘zone of reasonable conclusions’.

On the other, sometimes, they impose a reasonableness standard.

• R v Hillingdon LBC, ex p Puhlhofer (1986)

Facts: The question was whether the claimants were homeless and hence entitled, under the Housing (Homeless Persons) Act 1977, to accommodation, which turned on whether they already had ‘accommodation’...

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