Admin Law - Jurisdicition Flashcards
Error Outside Jurisdiction - Discretionary Powers
> Discretionary powers are conferred upon ministers and other bodies.
Discretionary power includes the power to decide freely whether rightly or wrongly within the area of discretion (Holt CJ in Fuller v Fotch (1695).
-E.g. where Home Sec has complied with all the legal requirements for deporting an alien, the law cannot control him however mistaken his decision is (R v Home Secretary ex p. Cheblak [1991]).
This means significant mistakes of both law and fact until recently - now all mistakes of law are outside jurisdiction after Anisminic, the watershed case.
Error Outside Jurisdiction - Limits of Discretion
> All discretion has limits set by the court.
Objective boundaries (to be decided by the courts) of subjective powers (exercised discretionally by the government).
- E.g. it is for the Home Sec to decide whether an alien ought to be deported but whether a person is an alien is determined by the court (R v Home Secex p. Khawaja [1984]).
If the courts cannot define the limit, a public authority might extend its own powers by making a mistake as to its extent.
Errors of Fact - there is a distinction between…
jurisdictional and non-jurisdictional fact
Errors of Fact - Jurisdictional Fact
> Definition: A fact that determines whether a decision is within jurisdiction of the body.
-First mention of jurisdictional fact was in Anisminic.
-Also called ‘precedent fact’ in Khawaja.
-Also called ‘collateral’ condition in Burnbury v Fuller.
> A mistake of fact can carry an administrative authority outside its jurisdiction.
-R v Hackney Rent Tribunal ex p, Keats [1951: a rent tribunal has the power to reduce the rent of a dwelling house but not a property let for business purposes. It mistakenly found that a property let for business to be a dwelling house and reduced its rent. Thus it was ultra vires.
Thus, on these facts the tribunal’s decision cannot be conclusive otherwise it could confer power on itself by its own error.
-A decision can be questioned by a higher court.
-Illegal aliens (the court has to determined whether a person has entered the country illegally).
-Lord Scarman in Khawaja: “where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether that requirement has been satisfied”.
Errors of Fact - Non-jurisdictional Fact
> Facts that have no bearing on the limits of power, that will not alter the jurisdiction of the body.
-E.g. rent tribunal’s findings as to the state of repair of the property, terms of the tenancy.
Errors of Fact - Distinction
> Jurisdictional fact: affects the scope of jurisdiction, decision subject to review by a superior court.
Non-jurisdictional fact: does not affect the scope of jurisdiction, decision by tribunal/body is conclusive.
As drawn by Coleridge J in Burnbury v Fuller (1853).
> Jurisdictional questions of fact or law are more likely to arise in decision of tribunals or courts than in administrative actions.
Case involving administrative action = White and Collins v Minister of Health [1939]:
-Local authority had the power to take land compulsorily for housing provided it was not ‘part of any park, garden or pleasure ground’.
-An order by the authority confirmed by the minister was quashed on the ground that the land was parkland.
-The minister contended that it was for the authority to determine the facts and that their decision was conclusive.
-Argument rejected by the CA: court is entitled to review findings on which existence of jurisdiction relied upon depends.
Errors of Law - Past Law
> Jurisdictional Questions of Law.
Questions of law that affect the jurisdiction of the body.
-R v Fulham Rent Tribunal ex p Philippe [1950]: a rent tribunal had power to reduce rent where it appeared that a premium had been paid, but where the payment is for work done by the landlord and not for the grant of the lease, it is not in law a premium. By treating it as a premium the tribunal made a mistake of law.
> Non-jurisdictional questions of law = do not directly affect the jurisdiction.
> Previously such a distinction was drawn similar to jurisdictional and non-jurisdictional facts.
Errors of Law - Current Law - general
> Every error of law by a tribunal must necessarily be jurisdictional.
-House of Lords in Anisminic, later affirmed in Pearlman by Lord Denning MR.
-Any error of law if material to a decision will render it ultra vires.
-Hence, possibility of non-jurisdictional error of law is eliminated.
Errors of Law - Current Law - Exceptions
> Inferior courts must be distinguished from tribunals and other authorities, an error of law by an inferior court may still give rise to an argument whether it is jurisdictional or not, if not jurisdictional it is immune form review: R v Hull University Visitors.
> Peculiar jurisdictions such as ecclesiastical courts, visitorial jurisdiction over universities, Inns of Court, which enjoy exemption from JR on the merits of their decisions (hence, only jurisdictional errors of law reviewable).
Other Points - Duty to Determine Jurisdictional Questions
> Where a jurisdictional question is before a tribunal, the tribunal must decide it.
If it refuses to do so it is wrongfully declining jurisdiction and the court will order it to do so (R v Camden LB Rent Officer, ex p. Ebiri [1981]).
Otherwise the tribunal would ‘wield absolutely despotic authority’: R v Marsham [1892].
However, the tribunal’s decision will not be conclusive, as stated in Bunberry v Fuller.
Other Points - Subjective Language
> Power is conferred on subjective terms such as:
-‘If the minister is satisfied’.
Courts are unwilling to resign their control of such questions merely because of subjective language.
R v Fulham Rent Tribunal ex p. Philippe:
-“where it appears to the tribunal that a premium has been paid” but the court quashed the tribunal’s order nevertheless hold that the payment was not in law a premium.
Other Points - Borderline Cases
> As stated in R v Special Commissioners of Income Tax (1888) and approved in Anisminic:
- Jurisdictional facts on which jurisdiction depends are not for tribunal or body to decide conclusively.
-Facts which the tribunal or body has jurisdiction to determine the existence of, upon which the jurisdiction for further action depends = for the tribunal or body to decide conclusively.
Other Points - Evaluative Wors
> Apparently collateral questions that are defined in the statute so imprecisely that it leaves the evaluation of the question to the decision maker.
> R v Monopolies & Mergers Commission ex p.. South Yorkshire Transport Ltd [1993]:
- The Commission was investigating local bus services in South Yorkshire, subject to the condition that the area was ‘a substantial part of the UK’.
- HL held that the criteria was so imprecise that a range of different reasonable interpretations could be made by decision makers, and the court will only override them if they are irrational.
> BBC v Sugar [2007]:
- HL declined to question the Information Commissioner’s decision to decline a complaint against the BBC for refusing to release information based on his interpretation of the FOIA 2000.
Other Points - Fundamental Policy
> No inferior tribunal or authority can conclusively determine the limits of its own jurisdiction.
The tribunals have limited jurisdiction and it would be a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit.
Error on the face of the record - definition
> The Court of the Queen’s Bench had the power to quash any decision of an inferior court or tribunal that displayed error of law on its face.
On its face = within the proceedings, the record displayed error of law, not necessarily jurisdictional.
If the applicant wanted to go outside the record and bring over evidence to show abuse of power, the court would quash only where an excess of jurisdiction could be shown.
Error on the face of the record - rise & decline
> In the 17th C, when certiorari was first used to control statutory powers, this was the original system of judicial control used by the Court of King’s Bench to supervise inferior tribunals and bodies.
However, review of the record became excessively formal with many orders quashed on technicalities.
In response, Parliament prevented its development by inserting no-certiorari clauses into statutes and enacting in the 19th C that criminal convictions could omit charge and evidence.
Courts moved away from review of the record and towards the wide ultra vires doctrine to circumvent no-certiorari clauses.
Error on the face of the record - revival
> It was revived in the Northumberland case in 1952 by Lord Denning:
- Clerk to a hospital board sought compensation for losing job after introduction of the NHS Compensation Appeal Board made an error that only compensation for second period of service was available in their judgement.
- Based on the error of law in their judgment the order was quashed by Lord Denning.
- Satisfied the public demand for better justice in the welfare state amid dissatisfaction with the tribunals set up.
However, the case opened the door to a mass of litigation.
Error on the face of the record - R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] - Lord Denning
> “… the Court of King’s Bench has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of a power to quash any determination by the tribunal which, on the face of it, offends against the law….”
“It will have been seen that throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record. What, then, is the record? … the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision…”
Error on the face of the record - Now
> There is now no useful role for error on the face as the HL established that all error of law, regardless of record, was excess of jurisdiction.
Review of Facts - Judicial Review of Facts
> C could ask the court to determine the facts and quash the decision if its view of the facts is opposed with the view of the public authority.
There would need to be hearings on the facts in dispute: therefore, the process would not be summary but a trial.
Review of Facts - reasons for deference to initial decision maker’s judgement on facts
- Process: the court does not have good techniques for finding facts in JR:
a) It is not tailored to the particular situation in which a PA finds the facts, it is tailored to controlling a wide variety of decision making processes.
b) Fact-finding by tribunals, planning inquiries etc. take advantage of information-gathering techniques that involve no rules of evidence except due process (equal opportunity for parties to respond to adverse information). - Comity: it would show a disrespect for the functioning of other authorities if judges were to take over their fact-finding role:
a) JR should not replace decision making processes.
b) A mistake of fact does not automatically give a right to judicial rehearing of the decision.
Review of Facts - restrained Wednesbury approach to review of facts
> Lord Bingham in R v Hillingdon LBC ex p. Pulhofer: it is the duty of the court to leave decision of fact to the public body unless it is obvious that the public body is acting ‘perversely’.
Review of Facts - No evidence rule
> But there is a limit for the exemption (deference): no evidence rule.
- Where findings are based on no satisfactory evidence/evaluating evidence wrongly.
- No evidence does not mean a total dearth of evidence, it extends to any case where evidence is not capable of supporting the finding/no reasonable tribunal could reach that conclusion.
Review of Facts - Basis of no evidence rule
> Previously, the notion it was based on the ultra vires doctrine (there is no jurisdiction to decide without evidence) was rejected, notably by Lord Sumner in R v Nat Bell Liquors Ltd [1922]: denounced the notion that ‘there is jurisdiction if the decision is right and none if it is wrong’.
> Currently, ultra vires is the basis for the rule.
- Lord Atkinson in 1914 in Folkestone Corp v Brockman stated that ‘an order made without any evidence is in truth, in my view, made without jurisdiction’.
