Jurisdiction Flashcards
Craig textbook:
Error of fact - theories of jurisdiction
Collateral Fact Doctrine (Lord Diplock, Anisminic – authoritative until 1960s)
- Thesis: There are preliminary questions that public bodies must answer before they can proceed on the merits, and these relate to whether the body was properly constituted, and whether the case was of a kind referred to in the statute (questions can involve fact, law or discretion). Public body makes an initial determination, but if the court finds on review that the situation in the statute didn’t exist then the public body’s finding is null.
- Difficulty: normally, statutes would say if X1, X2 and X3, then public body shall/may do Y. But if the X factors were deemed always to be jurisdictional, then the line between appeal and review would disappear and public body would only have the power to do whatever accorded with the opinion of the court
o Diplock’s resolution: if misconstruction of the statute relates to kind of case, then it is jurisdictional, but if it relates to situation then it is internal (but this line is impossible to draw – there is no predictability as to how a case will be categorized before the court categorizes it, and no ex post facto justification for why cases are so categorized)
Craig textbook:
Error of fact - theories of jurisdiction
Limited Review (Gordon)
- Thesis: if a public body is given jurisdiction over a certain topic then the question is whether the facts relating to the topic exist in the opinion of the public body (eg. if the topic is assault, then as long as the public body asked the right question (was there assault in the opinion of the public body?) then it will bind, even if it made the wrong answer).
- Difficulty: distinction between scope and truth is misconceived – it is fallacious to say that asking the wrong questions is always a question of jurisdiction; the subject matter of inquiry might involve decisions on a number of issues, and yet since each isn’t a subject matter by itself any error is only within jurisdiction. The fallacy is most evident when considering f(a,b,c,d…)=furnished tenancy – Gordon would only inquire into whether the right term, “furnished tenancy”, has been used, and doesn’t allow the court to peer into the meanings in the bracket (terms certain, intent, amount of fixture and fittings…) as these are termed non-jurisdictional. And yet the term is only a short hand for what is in the bracket – such a distinction makes little sense. As such, it would allow terms to become ‘empty vessels’ into which anything can be poured.
o Analytically flawed
o Unacceptable on policy grounds
Craig textbook:
Error of fact - theories of jurisdiction
Extensive Review - Academic (Gould)
- Thesis: The preliminary question of whether a public body was empowered to answer the relevant issue is decided on the opinion of the court, because it exists independently/as a precursor to the exercise of jurisdiction. The question is based on facts whose meaning cannot be altered by the public body, but relative to the opinion of the courts.
- Difficulty: why should all issues of law be ‘given’, and determined by the courts?
o Parliamentary intent – problem is that the argument depends on an irrebuttable presumption that Parliament intended the courts to decide on questions of law. This has been true in practice in the last 40 years but not in the 300 years before this.
o Impossibility (Gould: it wouldn’t be possible to talk of error of law unless there’s a ‘given’ meaning, to be determined by the courts) – this is a fallacy because all terms can have a number of meanings and “error of law” simply means that the court’s meaning is better than the public body’s. However Parliamnet may well prefer precise meanings adopted by specialist bodies rather than the general judicial meaning
o Uniformity (only adopting court’s interpretation, rather than inferior bodies’ diverse interpretations, can achieve uniformity) – but this argument doesn’t apply to bodies with internal hierarchy (top can define and bottom uses the definition).
Craig textbook:
Error of fact - theories of jurisdiction
Extensive Review: Judicial (Page – Browne-Wilkinson)
- Thesis: Parliament only conferred decision-making powers on the basis that it was to be exercised on the correct legal basis (so that misdirection in law while exercising the power rendered it ultra vires). The presumption that any error of law is reviewable is rebuttable, and the strength of the presumption varies according to the institution being reviewed
- Difficulties:
1. Meaning of ‘ultra vires’ is problematic: Necessary to distinguish four aspects of reasoning in Page:
a. Disapproval of collateral fact doctrine (welcomed)
b. Replacement of the doctrine with test that all errors of law are open to scrutiny (similar to Gould’s theory – objections there apply here; if all X factors are open to review, then this means that court’s definition of terms like “employee” are preferable to public body’s)
c. Though the decision was based on ultra vires, it gives the term a different meaning: Anisminic said that jurisdictional errors were ultra vires, but Page says that any error of law may be ultra vires. Sir John Laws says that the ultra vires principle isn’t needed anymore because the courts are essentially reviewing all errors of law, but it is still useful in providing a legitimate device for exercise of courts’ power.
d. There is a latent duality in the meaning of ultra vires given by Browne-Wilkinson: 1) contrary to legislative intent (701) and 2) contrary to the general law of the land, including common law (no longer limited to legislative intent – 702)
2. Test depends on defining ‘error of law’ (versus error of fact) yet judicial precedent provides little guidance as to which is which (because judicial attitude was based on collateral fact). Shift towards attitude that all errors of law are jurisdictional makes distinction more important. Three themes in literature:
a. There can be disagreement, but issues regarding meaning of statutory terms should always be a question of law
b. But the courts don’t always adopt this approach – sometimes they decide based on whether they wish to intervene
c. Courts have sometimes thought that when an issue is deemed one of law then substitution of judgment is inevitable, but when a spectrum of reasonable interpretations are available then it must be a question of fact. This doesn’t follow: a legal issue doesn’t stop being such just because it’s open to multiple interpretations
Craig textbook:
Error of fact - theories of jurisdiction
Conclusion
Conclusion
- Scope vs truth/detail is unsatisfactory as test for what is jurisdictional
- Scope of jurisdictional review is not self-defining (can’t be decided on linguistic/textual analysis of statute alone) – critical questions relate to opinion
Craig textbook:
Current Case Law
Anisminic
- Lord Reid: courts can intervene if the alleged error resulted from asking the wrong question or taking account of irrelevant considerations. This widened scope because a court could always say when it wanted to review that the error stemmed from asking the wrong question
- Lord Pearce and Wilberforce reached same conclusion similarly: tribunals had limited authority, the limits of which were up to the court to define in view of the relevant statute. Lack of jurisdiction can arise by absence of condition precedent to tribunal’s jurisdiction, irrelevancy, and asking the wrong question
- Points:
o Asking the wrong question and irrelevancy tell us that an error has been made, not that it is jurisdictional; the judgment presupposes that any condition to the exercise of jursidiciton is jurisdictional. It essentially replaces the tribunal’s view of the powers conferred by statute with the court’s view; the division between jurisdictional and non-jurisdictional vanishes
o Language of ‘asking the wrong question’ is really just a round-about way of saying that a different construction of an X condition should be adopted
Craig textbook:
Current Case Law
From Anisminic to Racal
- After Anisminic court could decide to intervene by saying the error resulted from asking the wrong question, or decide not to intervene by saying there was no error, or that the error was internal - contrast:
- Moore: sought review of tribunal’s interpretation of ‘resources’ for the purpose of a statute: Denning said that the interp was correct, and that further statutes shouldn’t become a hunting ground for lawyers to ask the court to review every minutia
- Pearlman: Denning said that the distinction depends on whether courts want to review, and that any error of law should be jurisdictional if the case depends upon it
Craig textbook:
Current Case Law
The Uncertainty of Racal
- Diplock drew tripartite test:
o Admin tribunals were subject to the full rigours of Anisminic: parliamentary intent is presumed subject to clear intention otherwise; any error of law will be deemed to result from asking the wrong question (jursidicitonal/non-jurisdictional errors abolished for practical purposes)
o Lower courts were subject to a different test, depending on the construction of the statute (whether P intended questions of law to be left to inferior courts – no presumption that statute didn’t so intend)
o High Court not subject to judicial review (appeal was the only corrective for mistake) - No other support for tripartite division
Craig textbook:
Current Case Law
Impact of Page (now leading authority)
- Ground of appeal: A was university lecturer who was made redundant; claimed that he couldn’t be dismissed on that ground, and visitor dismissed the claim. Sought review of visitor’s decision.
- Impact:
o Browne-Wilkinson said that the distinction between error of law on the face of the record and other errors of law was abolished, and that all admin tribunals’ errors of law were subject to review
o Basis of review is ultra vires – contrary to the law of the land. Thus lower courts are subject to review if their decisions are erroneous with regards to the law of the land.
o Only relevant errors can quash decision (those that contributed to the making of the decision)
o Unclear whether the distinction between tribunals and lower courts exists
Craig textbook:
Current Case Law
Impact of South Yorkshire Transport
- Terms might be open to a spectrum of interpretations, and the court can decide where on the spectrum to place the meaning (this is binding)
- But the criterion that is chosen might itself be so imprecise that different decision-makers may rationally reach different conclusions when applying it to specific cases, in which case the court will only substitute its meaning if the meaning the authority gave is “so aberrant that it cannot be classed as rational”
Craig textbook:
Current Case Law
Impact of Cart
- First case that dealt with the more limited review under Tribunals, Courts and Enforcement Act 2007
- Rejected argument that the Upper Tribunal was immune from review: no judge is infallible, so judgments should always be subject to review by superior courts; if the Upper Tribunal were immune, then it can make errors and these cannot be corrected
Craig textbook:
Current Case Law
Summary
- Courts will review any error of law and won’t use jurisdictional/non-jurisdicitonal distinction
- Error must be relevant to decision
- If, having defined the statutory term, it is still imprecise, the court will only substitute its decision for the agency’s if the latter is aberrant
- Administrative body raises presumption that Parliament intended questions of law to be subject to review; lower courts do not raise this presumption
- Upper Tribunal within the confines of the 2007 Act only engages judicial review where C shows that the claim raises an important point of principle or practice/other compelling reason
- County court calls for more limited review: Cs must use appeal rights rather than judicial review except on grounds of absence of jurisdiction
- Grant of remedies is discretionary; it may not result merely because an error of law has been made
Craig textbook:
Current Case Law
Error of law within jurisdiction
- Errors of law within jurisdiction are subject to review if they ‘appear on the face of the record’ (in documents initiating the proceedings/pleadings/adjudication, reasons for decision)
- But since Page discarded distinction between jurisdictional/non-jurisdictional error, this new category is redundant
Craig textbook:
Current Case Law
Statutory Review
- Sometimes statutes explicitly provide grounds of review (most commonly 1) order was outside power conferred by Act, or 2) requirements of Act not complied with)
- These have been regarded as in addition to common law heads of review
Craig textbook: Policy considerations
Abandoning Collateral Fact/Limited Review
- Abandoning collateral fact doctrine desirable:
o Arbitrary and uncertain in application
o Difficult to distinguish between kind and situation - Gordon thesis (limited review) also undesirable:
o Analytically flawed
o Unacceptable on policy grounds
Craig textbook: Policy considerations
Need to Remember History
- The tests were unsatisfactory, but we shouldn’t forget the rationale for them/the central problem: the balance between judicial review and agency autonomy
Craig textbook: Policy considerations
Review for All Errors of Law: Comments
- Scope of review is not logically demanded (no a priori reason why court’s view should be preferred to agency’s)
- Danger of eliminating administrative autonomy
- This danger can be mitigated if courts adopted a more pragmatic/functional/policy-oriented view of the term ‘law’
- There is some indication of this: South Yorkshire Transport
Craig textbook: Policy considerations
Middle Way
- Control can be achieved without courts substituting their opinion in every case, or giving administration unfettered power:
o US case of Chevron – rational basis test:
♣ If court decided that Congress intended a specific construction of the statute, then that construction is enforced
♣ Otherwise court considers whether the agency adopted a permissible construction of the statute (would be upheld even if it’s not one the court would have adopted)
• English law can accommodate this test to a degree; the agency’s interpretation would be accepted under Chevron if it is within the spectrum of possible rational interpretations that the term can bear; in English law the court still defines the statute, but if that definition is still imprecise, then the rational basis test is applied
o Canadian approach: pragmatic and functional approach
♣ Pushpanathan - Factors are taken into account when deciding the applicability of agency’s definition: existence of privative clause, relative expertise of decision-maker, purpose of legislation and contested provision, nature of problem (fact/law)
♣ Dunsmuir – reduces test to correctness and unreasonableness (abolished reasonableness simpliciter and patent unreasonableness) - Concerns:
o Constitutional principle: basis of judicial review can be argued to be legality not correctness
Craig textbook: Error of Fact
- Meaning of error of fact – categories of cases:
o Simple factual finding is challenged as being incorrect
o complex factual findings that involve evaluative judgment – eg. Kibiti: court had to decide whether there was a civil war in Congo as that impacted on the test for asylum seeking
o The primary decision-maker factually misinterpreted evidence presented – eg. Haile: special adjudicator thought that applicant was referring to one organization while he was actually referring to another
o Mistake made by not taking into account crucial evidence – eg. CICB: Compensation board refused application without taking into account a police doctor report that would have lent weight to her allegations
o Mistakes made on mistaken factual assumptions – eg. Tameside, E
o Mistakes made on general factual assumptions (eg. to the degree of risk faced by a certain group of people) that are later modified in light of later evidence – eg. Polat
Craig textbook: Error of Fact
- Scope of review: prior law
o Extent to which facts are subject to review was unclear until recently – a narrow and broad view existed:
♣ Narrow view – review for jurisdictional fact (facts that are pre-conditions for the exercise of power – eg. that the applicant be 18 or over) are allowed, as well as where the fact was the sole basis for the decision
♣ Broad view – Tamewide: misunderstanding/ignorance of an established and relevant fact can be a ground for review; CIBC: a failure to take account of factual evidence justifies review for unfairness
Craig textbook: Error of Fact
- Scope of review: E v Secretary of State
o Facts: E, Egyptian national, applied for asylum on the ground that he sympathized with the Muslim Brotherhood and was thus susceptible to torture if returned; Home Secretary refused the application because they thought that there was a low risk of torture, and he sought to rely on further evidence to the contrary but was refused because only evidence before the decision could be taken into account.
o Ground of review: IAT erred by not admitting relevant evidence. CoA (Carnwath) said that there’s no material difference between judicial review and appeal on point of law, but the dividing line is between cases of fact and law, and those of law only.
o Test for review of errors of fact:
♣ Factual error can be dealt with under a separate ground of review – fairness (follows Lord Slynn in CICB)
♣ The must be a mistake as to an existing fact, including availability of evidence
♣ Fact must have been “established” (uncontentious and objectively verifiable)
♣ Appellant must not be responsible for mistake
♣ Mistake must have played a material (not necessarily decisive) role in reasoning
o Test for admission of evidence to prove mistake of fact
♣ Had discretion to admit new evidence, but subject to principles in Ladd v Marshall:
• the evidence must not have been able to be obtained with reasonable diligence at time of trial
• If the evidence had been given it would probably have had an important influence on result of case
• Evidence was credible (thought not necessarily incontrovertible)
♣ Carnwath distinguished between two categories of case:
• Cases where courts had admitted fresh evidence without reference to Ladd: explicable because cases turned on legality of ministerial decision where evidence wasn’t available when initial determination was made but minister had continuing responsibility over the matter
• Cases that challenge decisions made by tribunals, where applicant seeks to introduce fresh evidence to prove factual error: courts sometimes admitted this evidence even though applicant could have detected the error (Haile) – in these cases Ladd should be treated as starting point with discretion to depart in exceptional circumstances
Craig textbook: Error of Fact
- Scope of review: Croydon
o Facts: Cs were asylum seekers who sought judicial review of authority’s decision, which denied that they were children and hence not entitled to accommodation by local authority. HL held that Children Act 1989 drew distinction between whether someone was a child for the purpose of the act and whether that child was in need; the former was a question of fact to be determined by the court.
o Baroness Hale – court would decide because the issue admitted of a right or wrong answer even though it was difficult to determine
o Court can review fact on three grounds:
♣ There is an objective fact susceptible to only one answer + Parliament intended the court to find that answer
♣ There is a jurisdictional fact
♣ The facts fulfill the criteria in E
o As such fulfillment of criteria 1/2 means that they don’t have to fulfill E criteria
o Problematic reconcilement with E:
♣ No authority for proposition that court can review simply because there’s only one answer and it’s to be provided by court – subsequent cases treated Croydon either as a jurisdictional fact case or one dependent on the Children Act
♣ If first ground is accepted then it would consume the other grounds
♣ Normative distinction between the three types of case is not justified
Craig textbook: Error of Fact
- Test for mistake of fact: foundations
o E approach = compromise between rival considerations:
♣ Tension between primary role of initial decision-maker and judicial desire to provide relief
♣ Tension resulting from limitation of appeals in certain areas to questions of law (necessitating review for fact that can be couched in review for law)
o Difficulty with pre-existing narrow view:
♣ Difficult to apply: unclear why the categories (fact was a condition precedent to exercise of jurisdiction, fact was only evidential basis for decision, or fact related to a matter that had to be taken into account) were different from other errors of fact
♣ Out of step with other developments in judicial review
o Conceptual foundation for judicial intervention
♣ Possible to justify review of fact on its own without couching it in terms of review of law – it has always existed internally in judicial review; only question was as to its scope
♣ Argument that where statute limits appeals to questions of law questions of fact shouldn’t be allowed rests on an assumption as to what the law is, and that errors of fact can never lead to errors of law
Craig textbook: Error of Fact
- Test for mistake of fact: criteria in E
o Mistake must be to an existing fact: Kaydanyuk – applicant sought asylum but application was denied after IAT read a report saying that he was depressed and deportation would increase the risk that he would commit suicide. Application was refused and as a result his state of mind declined; sought judicial review on ground that his state of mind only became apparent after the determination – court disagreed and held that he didn’t meet the test.
o Evidence must be uncontentious and objectively verifiable: CICB – error was failure to mention police doctor’s report. Difficulty is with interpretation of ‘uncontentious’; whether it means not requiring ‘evaluation’, or that it must be crucial or reliable to the initial determination
o Applicant must not be responsible for the mistake (good because it prevents applicants from profiting from own wrongdoing and provides incentive to disclose full and accurate facts
o Mistake played material part in tribunal’s reasoning
o Tightened availability of fresh evidence (because it had expanded appeal/review for mistake of fact) to hold Ladd as starting point but with discretion to depart
Craig textbook: Error of Fact
- Determination of factual error: role of reviewing court
o E didn’t directly address the role of the court in determining whether a mistake has occurred – thus it is examined below
o Existence or not of factual error may depend on the standard of proof demanded in relation to the facts:
♣ Khawaja – HL held that illegal entrant under Immigration Act 1971 can cover someone who obtained leave to enter by deception/fraud, and then considered the standard of proof than is required of the immigration officer to base his decision on this ground; held that reasonable grounds for action is insufficient, because power to affect liberty is in issue – high degree of probability of deception/fraud is necessary
o Court cannot make its own de novo decision about the decision of facts; it cannot act as the primary fact-finder
o When factual error is only apparent in light of fresh evidence – court can send decision back to primary decision-maker for reconsideration (E), or decide itself especially when it considers that the new evidence admits only one possible conclusion (A)
Errors of law: Anisminic
Held (HL): Held, (Lord Morris of Borth-y-Gest dissenting) that the word “determination” in the Act should not be construed as including everything which purported to be a determination but was not in fact a determination because the commission had misconstrued the provision of the Order defining their jurisdiction. Accordingly, the court was not precluded from inquiring whether or not the order of the commission was a nullity. Further, the expression “successor in title” in the Act was inappropriate to denote any person while the origianl owner is still in existence, and as such, the Commission (PDM) has misconstrued the Act and it was outside its jurisdiction to consider whether the applicant had a successor in title.
Per Lord Wilberforce: Just as it is the duty of the court to attribute autonomy of decision to the tribunal within the designated area, so the counterpart of this autonomy is that the court must ensrue that the limits of the area are laid down and observed.
PerLord Morris : The commission were acting within their jurisdiction when they entertained the application. They did not fail to obey any mandatory injunction of the Order and if in reaching an honest conclusion in regard to a question of construction, they made an error, such an error would be one made while acting within the jurisdiction and in the discharge of their function within it
Lord Reid: It cannot be for the commission to determine the limits of its own powers; if they reach a wrong conclusion as to the width of their own power, the court ought to be able to correct this, “not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal” – and their decision is a nullity.
If the Commission were entitled to consider whether A had a successor in title, then their decision would be unassailable, whether right or wrong, but they inquired into and decided a matter which they had no right to consider.
So according to Craig, Lord Reid is saying that asking wrong question or irrelevant considerations = nullity.
Lord Wilberforce: The Act imposes three conditions that must be (and were) satisfied by A; the Commission, in imposing a fourth condition, was acting outside its powers.
Pearlman
Whether installation of central heating was “structural”.
Held (CoA): it was substantial, and therefore structural.
Further (Lane LJ dissenting), that since the judge had misconstrued the meaning of the statute, he had erred in law and wrongly deprived himself of jurisdiction, and although the determination was made “final and conclusive”, JR was not excluded.
Lane LJ said that it was because the judge’s determination was made “final and conclusive” by the Act that it could not be said to be outside his jurisdiction, and JR was not available.
Lord Denning: “final and conclusive” preclude appeals to higher courts, but not the correcting of errors by higher cours by means of JR – thus, JR can still be used for excess of jurisdiction or error of law on the face of the record.
So on the issue of jurisdiction: was the error within or out of the PDM’s jurisdiction? “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 in the words: “The court below had no jurisdiction to decide this point wrongly as it did.” If it does not choose to interfere, it can say: “The court had jurisdiction to decide it wrongly, and did so.”” – that is the reason for the difference in between the CoA and HL in Anisminic.
Suggests that this distinction be discarded – higher courts has and should have jurisidction to correct errors of law, both to do justice to the complainant in the instant case and to ensure uniform application of the law. The rule should be this: “no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it”.
There was also quite a frank recognition by Denning MR that the distinction was so meaningless that it was being manipulated by judges for instrumental purposes. What side of the jurisdictional/non-jurisdictional line a case fell simply reflected what courts believed the right outcome of the case on the facts to be!
Geoffrey Lane LJ (dissenting): [citing Anisminic (Lords Reid and Wilberforce)] “The questionis not whether he made a wrong decision, but whether he inquired into and decided a matter which he had no right to consider” – and in this respect nothing the judge did went outside the proper area of his inquiry. The judge simply said that in his view the installation of central heating did not amount to structural alteration within the ordinary meaning of those words – this determination, assuming it to be erroneous, can properly be said to be one which he was not entitled to make. He considered the words which he ought to, he didn’t emark on some unauthorised or extraneous or irrelevant exercise. “All he has done is to come to what appears to this court to be a wrong conclusion upon a difficult question.” [NOTE: this idea of deference perhaps is supported here???]
O’Reilly
Lord Denning: in private law, the decision did not threaten any right of the appellant, because all that he had was a legitimate expectation. But in public law, such legitimate expectation gave sufficient interst to challenge the legality of the adverse decision on the ground that the PDM acted outwith the powers conferred upon it by legislation, ex. failure to observe natural justice. Where a power-conferring legislation also provides expressly for the procedure to be followed, the court must decide whetehr a particular procedural provision is mandatory (so that its non-observance would result in nullity) or if it is merely directory.
The requirement that a person who is charged with having done something which if proven will or may affect him adversely, should be given a fair opportunity of hearing (audi alteram partem), is so fundamental to any civilised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement.
Page
Held (Lord Mustill and Slynn dissenting):
- The visitor was the sole judge of the law of the university, and as such the court had no jurisdiction to determine matters within the jurisdiction or review decisions relating to questions of fact or law, whether right or wrong, provided that the decision was made within jurisdiction and in accordance with rules of natural justice
- Judicial review lies against the visitor if he acted outside of jurisdiction or abused his powers in a manner wholly incompatible with his judicial role, or acted in breach of the rules of natural justice
- As such, court had no jurisdiction to review visitor’s construction of the university statutes
Lord Browne-Wilkinson (Lord Keith, Griffiths agreed):
- Thomas v University of Radford held that the cours had no jurisdiction to entertain disputes that must be decided by the visitor, but it wasn’t concerned with whether the visitor’s jurisdiction excludes the supervisory jurisdiction of the courts by way of juridical review (it merely decided that the visitor and courts didn’t have concurrent jurisdiction)
- Philips v Bury:
a. Court can and will inquire whether the visitor had jurisdiction in the matter
b. If YES, court has no power to ignore/review it in any way
c. Reason: an eleemosynary corporation is governed by its own private law and is not subject to the laws of the land (this springs from the common law recognition of the right of the founder to lay down special laws subject to adjudication only by a special judge – the visitor) - Appellant’s argument: Three traditional grounds of review - illegality, irrationality, procedural impropriety (CCSU). Court can’t pick and choose – it either decides that visitor’s decisions are subject to all three grounds of review or none at all. Since it decided the former, it must be subject to review on illegality, including if the visitor made an error in construing the statutes of the university
a. Accepts that powers are conferred subject to the underlying assumption that the powers are to be exercised only within jurisdiction conferred in accordance with fair procedures (Wednesbury unreasonable decisions outside of jurisdiction can be quashed) – but with one exception: decisions taken within jurisdiction but where the error of law appeared on the face of the record are subject to review
b. However, Anisminic abolished the need to distinguish between errors of law on the face of the record and other erros of law by extending doctrine of ultra vires (it was to be taken that Parliament only conferred decision making powers on the basis that it was to be exercised on the correct legal basis, so that a misdirection in law renders automatically the decision ultra vires.
c. Therefore, any error of law made by an admin tribunal/inferior court in reaching its decision can be quashed for error of law - However, this general proposition doesn’t apply to visitors because:
a. The reason why errors of law are reviewable is because they are ultra vires, but visitors don’t apply the laws of the land but a peculiar domestic law of which he is the sole arbiter and of which the courts have no cognizance – he cannot err in law in reaching a decision since the general law is not applicable. As such, he cannot be ultra vires by applying his view of the domestic law, and the court has no jurisdiction.
b. The basis of Anisminic is that it applies to administrative tribunals/bodies made under statutory powers, because of the presumption that the statute conferring the power didn’t intend the body to be the final arbiter of questions of law; this is contrasted with a court of law, where no such presumption exists – on the contrary, if Parliament provided that the court’s decision was final, it was so
i. As such, if there were a statutory provision that the decision of a visitor on the law applicable to internal disputes is to be final and conclusive, courts would have no jurisdiction. There’s no distinction between this and 300 years of common law which recognized visitors’ decisions on points of law and fact as final and conclusive. - Appellants submit that the distinction between law of the land and peculiar domestic law is argificial, since university’s laws are phrased in ordinary statutory language, and universities occupied an important public role and shouldn’t be immune from the laws of the land [MI But is this really an immunity from the laws of the land? Surely if the decision contravened a general law it would be subject to review; it’s only purely internal laws that are not?]. However, there are advantages to having an informal system that produces a speedy, cheap and final answer to internal disputes, so though accepts that the visitor’s position is anomalous/unique/artificial it doesn’t justify sweeping away 300 years of caselaw [MI: But it’s not unique – it just means that internal laws are not subject to judicial review by public courts (on which parliament conferred a power of review); wouldn’t it be the same for rules in sports tournaments etc. which are reviewed by a special review board and not by the courts?]
- As such there is no judicial review for decisions taken by visitors within their jurisdiction; there is judicial review if the visitor abuses his power
Lord Griffith:
- Purpose of judicial review = ensure that bodies that are susceptible to it carry out their duties in a way that it was intended they should
a. In case of bodies other than courts – insofar as they are required to apply the law, they must apply it correctly (judicial review is available to correct errors of law)
b. In case of inferior courts – judicial review is available to correct errors of law (lower justices’ learning and understanding of law might be imperfect)
i. Traditionally confined to correcting errors on the face of the record, but now available to correct any error of law
ii. However Parliament can confine a decision on a question of law to a particular inferior court to provide a final decision unchallengeable - For centuries courts have recognized the visitor’s exclusive jurisdiction and his decisions as final on all matters within his jurisdiction; the court can only quash his decision if it amounted to an ‘abuse of his powers’
a. Abuse of powers doesn’t mean when someone makes what an appellate court later regards as a mistake of law (in such a case they’re exercising their power to the best of their ability; the court just thinks that he was somehow mistaken) - Parliament sometimes provides that a decision on a question of law should be considered as final and not subject to review; common law has recognized the value of the visitor acting as judge of internal laws, and making his decision subject to review would remove these benefits. If thought that these benefits no longer exist, then it is up to parliament and not the courts to reverse three centuries of common law
Lord Mustill (dissenting on the reasoning):
- Dismisses the appeal because the decision of the visitor was right, but concludes that it is still reviewable
Lord Slynn (dissenting, Lord Mustill agreeing):
- Accepted since Animisnic that that judicial review is available to quash errors of law whether or not they go to jurisdiction
- With regards to visitors, some control over jurisdiction is recognized by caselaw:
a. R v Bishop of Ely – court will compel a visitor to exercise his jurisdiction if he fails to do so
b. Bishop of Chichester v Harward and Webber – court will inquire as to whether a visitor intended to act outside of its jurisdiction and order a prohibition to restrain him - There’s been a recent expansion in the scope of judicial review; consistently, if judicial review can go to a particular tribunal it is available on all grounds, including illegality, that are recognized by the law – since it is generally available for errors of law not involving abuse of power, then it should also be available in respect of decisions of visitors
- Rejects objections:
a. History of eleemosynary corporations doesn’t justify distinction between them and general law
b. Not true that all questions referred to a visitor involve arcane learning that can be resolved only by him
c. Floodgates argument to be rejected – many visitors’ decisions involve errors of fact and not law, and as such, are outside the scope of judicial review anyway - Can see no justification for withholding judicial review where questions of law involve “matters analogous to or the same as issues of the general law” [MI: This seems to suggest that the court reviews anything that it considers right to review, rather than what the legislature intended that it should review. But is this really a question of law, when the internal laws of a corporation are at play? Is the word ‘law’ used in the same sense?], especially where individuals’ rights are affected
- But since no error has been made, the appeal is to be dismissed.
South Yorkshire Transport
Lord Mustill (Lord Templeman, Goff, Lowry, Slynn agreed):
- Lower courts found that the authorities came to a wrong interpretation of the meaning of ‘substantial’ for the purpose of a legislation, and that the meaning was like a chameleon – it depends on context. In this context, it means a large proportion, not ‘not de minimus’ and thus the authorities got it wrong
- In the present court it is clear that the word has a range of meanings – at one end there is ‘not trifling’ and on the other there is ‘nearly complete’ – the range of meanings is quite clear from decided cases. For the purpose of the statute the meaning is a bit more up the spectrum than ‘not trifling’, but on the evidence it’s not true that the commission interpreted it to mean ‘not trifling’ (as it examined whether a large part of the land was used for the purpose)
- Though the court rejected the respondents’ test they declined to provide a new one because it would be to substituted non-statutory words for the words of the Act that the commission is obliged to apply, and thus it would unduly fetter the judgment of the commission in future unforeseen situations.
- Respondents argued that the two stages of the commission’s inquiry were different tasks – once commission reached the stage of deciding on public interest and remedies, it could only be overturned for irrationality; the question of jurisdiction is entirely different as it affords no disagreement – either the commission had jurisdiction or it didn’t; the fact that it was hard to identify the meaning of the Act doesn’t matter because it does have a single correct meaning and when it is found its application to the facts would yield one single answer
a. agrees in part – once the critierion for a judgment has been property understood, the fact that it was formerly part of a wide range of criteria no longer matters. But sometimes the criterion established might itself be so imprecise that different decision-makers can rationally reach different conclusions when applying it to the facts. In these cases courts can only substitute their own opinion if the decision is “so aberrant that it cannot be classed as rational” - The present is such a case – even after eliminating inappropriate senses of ‘substantial’ there is still a meaning broad enough that judgment can be exercised; the court thus has no ground for interference as the commission’s decision was within the permissible field of judgment.
Rehman
Lord Hoffmann:
The relevant X factor is “the interests of national security” – what is meant by “national security” is a question of law within the Commission’s [reviewing body] jurisdiction. But there is no difficulty as to what “national security” means – on the other hand, “in the interest of” is more difficult, and it’s not a question of law but one of judgment and policy. Decisions regarding what is/isn’t in the interest of national security isn’t a matter for judicial decision but entrusted to the executive.
The decision as to whether support for a particular movement in a foreign country would be prejudicial to national security involves delicate questions of foreign policy, from which national security cannot meaningfully be segregated – this is within the jurisdiction of the executive and not the courts.
But this doesn’t mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary, so as to “defeat the purpose for which the Commission was set up”. There are therefore three conditions –
- The interst to national security must be supported by evidence
- Commission can reject Home Secretary’s opinion if it’s one which no reasonable minister could in the circumstances reasonably have held
An appeal can turn upon issues which at no point lie within the exclusive province of the executive (eg. whether deportation would expose him to risks of Art 3 infringement.
R(Cart)
Baroness Hale
- Upper Tribunal’s unappealable decisions are nevertheless subject to judicial review, because nothing in the 2007 Act purports otherwise and clear words would be needed to do this
a. The argument that making the Tribunal a superior court of record was sufficient to do this fails. - The scope of judicial review is an artefact of the common law whose object is to maintain the rule of law (to ensure that decisions are taken in accordance with the law that parliament has enacted). This is the role of tribunals and courts. But we all make mistakes – the question is what machinery is necessary and proportionate to keep these mistakes to a minimum? In other words, should there be any jurisdiction where mistakes of law are (in theory or practice) immune from scrutiny in the higher courts?
- Three possible approaches:
a. The new system is such that the scope of judicial review should be restricted to pre-Anisminic excess of jurisdiction and denial of fundamental justice (exceptional circumstances approach)
i. This leads us back to the jurisdictional/other errors division abandoned after Anisminic – lawyers are very familiar with it so might be desirable
ii. Objections: - We aren’t really turning back the clock to pre-Anisminic, because judicial review was available to correct errors of law on the face of the record. We’d just be re-introducting the distinction that became relevant only where judicial review was expressly excluded (not the case here)
- We might return to the technicalities of the past (eg. asking the wrong question/applying the wrong test – unsatisfactory questions)
- It lies within Parliament’s power to exclude judicial review, but the 2007 Act doesn’t do it
b. Nothing has changed – judicial review of refusals of leave to appeal has always been available
c. Middle way – judicial review in these cases should be limited to grounds upon which permission to make an appeal to CoA would be granted - No system of decision-making is perfect or infallible; there’s always the possibility that a judge at any level will make a mistake and there should always be the possibility of another judge with more experience to check for error. But this doesn’t mean that there should be a right to any particular number of further checks after this.
- As such, to balance the need for judicial review and the enhanced tribunal deserving of a restrained approach to judicial review, the same criteria upon which applications for permission to make a second-tier appeal to the CoA were determined, would be used in such cases. These criteria would provide a further check, but not one that can be expected to succeed in the majority of cases.
- Since nothing in the case brings the claimant within the second-tier appeal criteria, they weren’t entitled to judicial review.
Lord Phillips
- The proposition that PSove requires P to respect power of High Court to subject decisions of public authorities to judicial review is controversial. The issue relates to the principles that govern the exercise of JR of decisions of the UT. Appellants submit that any arguable case that the UT has made any error of law should lead to JR, whereas the Advocate General for Scotland argued that it is only appropriate in exceptional circumstances.
- Unless its decision to refuse permission to appeal to itself were amenable to judicial review there was a real risk that the Upper Tribunal would become the final arbiter of the law (even where it is wrong) so that errors of law of real significance can be perpetrated [MI: But what about mistakes of law made by the Supreme Court?]
- Then endorses the conclusion of Baroness Hale.
Jones
Held (UKSC): the correct approach for the Tribunal to consider 1) whether a criminal offence has been committed and 2) whether it was a crime of violence. The offence in this case, s20 OAPA 1861, requires subjective (actual) foresight as to the act might cause harm to others, and not merely that they ought to have foreseen. This (whether the D was reckless) had been a question for the Tribunal and not the CoA, the Tribunal’s finding that he had not been reckless was rational and therefore not open to review.
Carnwath’s extension – sometimes we should let reviewing bodies look at facts, possibly because these factual issues recur (consistent public body decision-making)
Lord Hope: it is primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues, bearing in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals.
The question whether a criminal offence has been committed is a question for the tribunal to determine as a matter of fact.
Lord Carnwath: the Leggatt Recommendation for the establishment of an appellate tribunal had the promotion of consistency in mind, and though appeal was to be limited to points of law, it was observed (in the White Paper) that the UT might be permitted to interpret “points of law” flexibly to include other points of principle or factual judgment of general relevance to the specialised area in question.
This interpretation, though controversial, is not out of line with the developing JP in the appellate courts (ex. Moyna). Lord Hoffmann said (in another case) that it may be said that there are two kinds of questions of fact: “questions of fact; and questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment.”
[carnwath] “The idea that the division between law and fact should come down to a matter of expediency might seem almost revolutionary. However, the passage did not attract any note of dissent or caution from the other members of the House.” It appears authoritatively established since Serco that the division between law and fact in such classification cases is not purely objective, but must take account of factors of ‘expediency’ or ‘policy’. And if there is an intermediate appeal to a specialist appellate tribunal (between the first instance and appellate court) on law only, then “Logically, if expediency and the competency of the tribunal are relevant, the dividing line between law and fact may vary at each stage.”
For the purposes of the present appeal it is unnecessary to consider further the working out of these thoughts. In the present context, they provide support for the view that the development of a consistent approach to the application of the expression “crime of violence”, within the statutory scheme, was a task primarily for the tribunals, not the appellate courts.
Allan ‘Doctrine and theory: an elusive quest for the limits of jurisdiction’
It’s important to distinguish review from appeal (because courts determine legality not correctness), but “these distinctions can have no meaning without determinate criteria of legality; and it is precisely these criteria that conceptual analysis alone is powerless to generate”.
However broadly or narrowly conceived, doctrine can play only a “very limited role” in determining the legality of specific decisions, because public law rights do not enjoy the peremptory nature of their private law counterparts, because they must be balanced with other interests, and therefore have no legal substance that can be detached from the particular circumstances that determine their content in the particular case. It’s thus difficult to distinguish between legal judgment and merits.
I – The elusive search for a theory of “jurisdiction” (i.e. distinction between jurisdictional and non-jurisdictional error) as an illustration
If the scope of an agency’s “jurisdiction” could be determined by criteria independent of its exercise, then we can define an autonomous sphere of operation immune from JR in advance of any inquiry or action – then JR would resemble a “limited appeal on a point of law or issue of fact treated as “collateral” to the agency’s inquiry or determination, or as a “precedent” condition; on all other issues of substance (howsoeverdescribed,whether as “law”, “fact”, or “policy”) the court could not interfere”.
The principal weakness of a formal approach is that it achieves a degree of agency autonomy at the price of unacceptable rigidity: we are forced to choose between leaving an issue wholly to the judgment of the court or PDM, while in many cases we’d prefer to “entrust the matter to the aency’s decision within certain limits” [emphasis in original], giving the PDM discretion to select one acceptable answer within a permitted range.
[Speaking of the jurisdictional/non-jurisdictional error distinction] “What may in theory be a distinction in kind becomes in practice merely one of degree (…) The failure to attach appropriate weight to a factor of overwhelming (or perhaps merely substantial) importance is clearly an instance ofWednesbury unreasonableness”.
Thus no clear distinction between jurisdictional criteria can be sustained. “The distinction between appeal and review is therefore necessarily one of degree: its existence is a function of the latitude accorded the public authority in respect of any particular decision.”
II – Conclusion
“The division of power between courts and agencies must be as fluid or flexible as the range of contexts in which they interact, so that constitutional principle and public policy can be made as harmonious as circumstances allow.”
The Consequence of an Error of Law - Void, Null, Voidable, Invalid?
Forsyth (2007)
Defending the role of formalism in administrative law.
Argues that: (1) all legal systems are relatively formalistic; (2) formalism is ingrained in the English common law; (3) formalism underpins the rule of law; and (4) it creates legal certainty. Discusses how conceptual reasoning can help resolve the legal problem arising from administrative acts that are theoretically void, because invalid, but only voidable in practice until their invalidity is established.
Basically Forsyth says that the status of invalid administrative acts are (whatever the grounds of invalidity) void and not voidable (i.e. they are legally non-existent and not valid until set aside by a court or other competent authority): Ridge v Baldwin (a fair hearing case). But an unlawful decision will often appear lawful, and others may reasonably act on the assumption that it is lawful, so that the result of the unlawful act is often effective until set aside by a court, and will be as good as any lawful decision until and unless challenged – this is a description of an act that is voidable, so that “unlawful administrative acts are theoretically void, yet functionally voidable”.
Saying simply that they’re voidable and the cases deciding that they’re void is wrong is unacceptable: they must be void in order to protect the innocent from imprisonment (because they are often crucial ingredients of criminal charges, and most inferior courts cannot set them aside, so that to avoid the innocent going to prison, they must be able to be challenged collaterally (as a defence) and to do so requires the act to be void and not voidable.
One solution (Lord Hailsham) is to reject conceptual formalism altogether and to not use the distinction between void and voidable in administrative law in favour of judicial discretion. But it’s these concepts that structure and contain the judicial role: unfettered executive discretion, which the court’s role is to control, cannot be replaced by unfettered judicial discretion.
the “theory of the second actor”: void acts may (without compromising their legal invalidity) produce an effect. Unlawful administrative acts do not exist in law but they do exist in fact – the validity of the second act depends on the powers of the second actor…
whatever… not important
The Consequence of an Error of Law - Void, Null, Voidable, Invalid?
D Feldman, ‘Error of Law and Flawed Administrative Acts’ (2014) 73 Cambridge LJ 275 (NOFL)
The idea that all legal flaws make an administrative decision void is erroneous – it may only be voidable, because it may not be an issue of law (Anisminic was one, but unreasonableness, improper purpose, reviewable errors of fact are erroneous (according to the court) but not errors of law). Saying that everything is an “error of law” reduces the law’s coherence.
Wade’s view (described as “relativity”) has it that “voidness” of a flawed decision depends not on theoretical considerations but on whether a court wants to grant relief which deprived it of legal effect, for even a “void” act may be valid as against a party who has no legal title to challenge it. The meaning of “void” is thus relative.
Craig’s view is that though the foundation proposition is that invalid acts are retrospectively void, a court may in its discretion refuse a remedy for an unlawful and void act (though this in his view doesn’t make it valid). Thus, voidnss is merely a threshold condition for the grant of a remedy.
Forsyth argues that a “void” decision has legal effect if a “second actor” has independent power to act notwithstanding the unlawfulness of the earlier act. But statutes are often silent on whether a second actor has authority to act notwithstanding the invalidity of the earlier decision, so we can’t know if the invalidity covered the second act until after the fact, when the court decides it.
The Consequence of an Error of Law - Void, Null, Voidable, Invalid?
Compare R v Govr of Brockhill Prison, ex p. Evans (No 2) [2001] 2 AC 19 & (NOFL)
A prison governor calculated the applicant’s release date wrongly so that she was imprisoned falsely for 59 days. A claimed damages for these days spent in custody. The judge dismissed her claim on the ground that the prison governor had been entitled to rely on previous court decisions to calculated her release until they were held to be in error. CoA allowed A’s appeal and held that the detention had never been lawful since a judicial decision operated retrospectively.
Held (UKSC): the detention was unlawful and the prison governor had acted in excess of the powers conferred by Parliament – the fact that he had complied with the law as the court had at the time declared it to be was not sufficient justification for false imprisonment (a tort of strict liability), thus, entitled to damages.
BUT note Lord BW specifically said that this was not a question of where a D had acted in accordance with statutory provisions that are subsequently held to be ultra vires and void – simply, the case is decided on the ground that false imprisonment is a tort of strict liability, the consequences of which cannot be avoided even by showing that D acted in accordance ith the view of the law at the time accepted by the courts as being correct.
The Consequence of an Error of Law - Void, Null, Voidable, Invalid?
R (WL (Congo)) [2012] 1 AC 245, SC (NOFL)
Unlawful imprisonment claim because the Home Secretary had applied an unpublished policy inconsistent with published policy and the statute granting them the power + damages. Trial judge round that the unpublished policy involved a presumption in favour of detention, prohibited by statute + unlawful to operate an unpublished policy. However, dismissed claims for damages because the unpublished policy would only be unlawful where the applicant would not have been detained applying the published policy.
CoA: A presumption in favour of detention was lawful, but in this case in practice the unpublished policy operated on a blanket basis and was unlawful + it was unlawful also because it was less favourable to A than the published policy. But appeal dismissed because held that the unpublished policy had not been the material cause of their detention, and therefore did not render the decision to detain unlawful.
Held (UKSC): that the unpublished policy was unlawful, and that false imprisonment was a tort actionable per se regardless of whether the victim suffered damage, and once intentional imprisonment is proven, the burden shifts to D to justify it – here the Home Secretary has to show that the detention was justified in law and where the decision to detain is tainted by publish law error, it is not a defence to claim that the decision could have been made lawfully. But, because if the power had been lawfully exercised applying the published policy, A would undoubtedly have been detained regardless, so nominal damages only.
Lord Kerr on what would render the detention invalid: “Breach of a public law duty which has the effect of undermining the achievement of the statutory purpose will therefore, in my opinion, render the continued detention invalid”.
In Boddington, Lord Irvine said that “the purported exercise of a statutory power would be regarded as void ab initio if it had been made in bad faith, or as a result of taking into account an irrelevant, or ignoring a relevant, consideration”, because Anisminic established that there was a single category of errors of law which all renders a decision ultra vires.
But note Lord Brown (dissenting on this point): it does not seem to me that the “absolutist approach to the consequences of public law error espoused here by the majority of the Court has received universal endorsement over recent years”. Boddington is often cited as an example of Anisminic being applied in the ordinary course of proceedings, but there are “important dicta in the judgments which expressly leave open the question whether legal consequences may none the less follow from unlawful action” [cites Wade and Forsyth, who think that ‘void’ is relative and not absolute]. “In this particular case it should expressly recognise that not every decision to detain affected by a public law breach necessarily carries in its wake an unanswerable claim for false imprisonment.”
Review of Findings of Fact (NB Craig, ch 15)
R. v. Hillingdon L.B.C. ex parte Puhlhofer [1986] 1 AC 484 (HL)
What is properly to be regarded as accommodation is a question of fact to be decided by the local authority. There are no rules. What the local authority have to consider, in reaching a decision whether a person is homeless for the purposes of the Act, is whether he has what can properly be described as accommodation within the ordinary meaning of that word in the English language.
Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if the housing authority are satisfied as to this, or that, or have reason to believe this, or that. (…) Great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one (…). But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case.
The ground on which the court will review is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in theWednesburysense - unreasonableness verging on an absurdity. (…) Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are action perversely.
Review of Findings of Fact (NB Craig, ch 15)
R v Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74, HL
HL held that illegal entrant under Immigration Act 1971 can cover someone who obtained leave to enter by deception/fraud, and then considered the standard of proof than is required of the immigration officer to base his decision on this ground; held that reasonable grounds for action is insufficient, because power to affect liberty is in issue – high degree of probability of deception/fraud is necessary.
Lord Fraser: On the question of the court’s role in JR of such cases, is it limited to deciding whether there was evidence on which the immigration officer could reasonably come to the decision that A was an illegal entrant, or does it extend to deciding whether the decision was justified and in accordance with the evidence?
On this question (agreeing with Lord Bridge and Scarman), an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant (reasonable belief is not enough). That is a “precedent fact” which has to be established.
Lord Wilberforce (less important): the case falls in two parts – determination by the PDM that a person is an illegal entrant, and then a discretionary decision to remove him from the country and to detain him. Separate principles govern these two stages – the second is governed by the principles governing the review of discretionary decisions (ex. Wednesbury reasonableness); the former is not.
There is no doubt that courts have jurisdiction to review the facts on which the PDM’s conclusion was reached. There is no doubt that, questions of liberty and allegations of deception being involved, the court both can and should review the facts with care. The sole question is as to the nature of this review.On the one hand, the court should not act as a court of appeal when exercising review, but on the other, since the critical conclusion of fact is reached by the administrative body and not judicial body, the court would think it proper to review it.
The principles in Zamir (infra, Lord Scarman) are too narrowly stated and JR must include the power to decide whether the applicant is in fact an illegal entrant.
Lord Scarman: a fundamental consideration is that the power in this case inevitably infringes the liberty of those subjected to it. The Zamir decision (with which Lord Scarman disagrees) would exclude limit review of decisions to remove someone from the country as being an illegal entrant, to Wednesbury unreasonableness by excluding them from the “precedent fact” category. “This principle is undoubtedly correct in cases where it is appropriate. But, as I understand the law, it cannot extend to interference with liberty unless Parliament has unequivocably enacted that it should”, as it runs counter to the development of the safeguards which our law provides for the liberty of the subject. If Parliament intends to exclude effective judicial review of the exercise of a power in restraint of liberty, it must make its meaning crystal clear.
Review of Findings of Fact (NB Craig, ch 15)
R. v. CICB, ex parte A [1999
Lord Slynn: The Court is asked to quash the decision on the basis that it was reached on a material error of fact (citing Wade and Forsyth and De Smith); I would accept that there is jurisdiction to quash on that ground, but prefer to deicde the matter on the alternative ground of breach of natural justice.
The others agreed with Lord Slynn’s reasoning; only Lord Hobhouse made direct reference to the question of review for ‘error of fact’, specifically reserving the issue for future consideration.
Review of Findings of Fact (NB Craig, ch 15)
Alconbury [2001]
Lord Slynn: I accepted in ex parte A that the court had jurisdiction to quash for a misunderstanding or ignorance of an established and relevant fact. As such, there is in principle no violation of Article 6 ECHR as the scope of review is sufficient to comply with its standards.
[This point was not in terms adopted by the other members, though Lords Nolan and Clyde mentioned it, though Lord Nolan put it in somewhat narrower terms (review of the merits of the decision-making process is fundamental…)]
Lord Nolan: Electoral accountability alone is plainly insufficient to satisfy the rule of law. A review of the merits of the decision-making process is fundamental to the court’s jurisdiction and the power of review may even extend to a decision on a question of fact (ex. Edwards v Bairstow, where an appeal could only be brought on a question of law but upheld the right and duty of the appellate court to reverse a finding of fact that had no justiciable basis.
Lord Clyde: it is sufficient to note (…) the extent to which the factual areas of a decision may be penetrated by a review of the account taken by a decision maker of facts which are irrelevant or even mistaken [cites ex parte A].
Review of Findings of Fact (NB Craig, ch 15)
E v Secretary of State for the Home Department [2004]
Whether an Egyptian and an Afghan national who had been refused asylum could be granted leave to appeal on the grounds of mistake of fact because the Home Secretary had not considered reports suggesting that they would be at risk of detention, torture or persecution in their countries of origin.
Carnwath LJ: Can a decision reached on an incorrect basis of fact be challenged on an appeal limited to points of law? Controversial, not least because of the difficulty to distinguish between issues of fact and law (Craig, p488 and Moyna per Lord Hoffmann at para 22ff).
Though Lord Slynn’s statement in ex parte A is obiter, that doesn’t detract from its persuasive force. Does it now represent the law?
Two main points emerge from the authorities on this point: “first, that widely differing views have been expressed as to the existence or scope of this ground of review; but, secondly, that, in practice, this uncertainty has not deterred administrative court judges from setting aside decisions on the grounds of mistake of fact, when justice required it.” [MI so again, it’s justice that is the final consideration, whatever your views as to the formal theoretical foundation for JR and errors of fact]
In our view, ex parte Apoints the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between “ignorance of fact” and “unfairness” as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that “objectively” there was unfairness. On analysis, the “unfairness” arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was “established”, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) (…)all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning. [NOTE here, then, the connection between procedural unfairness and review for mistake of fact! This definitely supports Williams’ point, especially because his lordship continues on to state: “If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of fact.”]
On the shared interest point: Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis. Similarly, in Tameside [1977] AC 1014 , the council and the Secretary of State, notwithstanding their policy differences, had a shared interest in decisions being made on correct information as to practicalities. The same thinking can be applied to asylum cases. Although the Secretary of State has no general duty to assist the appellant by providing information about conditions in other countries, he has a shared interest with the appellant and the tribunal in ensuring that decisions are reached on the best information.
“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result.”
Review of Findings of Fact (NB Craig, ch 15)
Connolly v Secretary of State for Communities and Local Govt [2009]
Two planning applications made by Mr Cullen, when the issue was appealed to the Planning Inspectorate, they were only told about his first application and by that stage, this application had fallen away and was no longer relevant. The Inspectorate was not told that he had made a second application, which was the one appealed to them (they were looking at the wrong file).
Rix LJ: “So, in this case, it seems to me … that there has been unfairness arising out of a mistake of fact in circumstances closely analogous to those discussed in the three cases discussed above [ex parte A, E and Patel v SS for Transport, Local Government and the Regions].” [MI this supports Williams’ point that this case is just reasoning by analogy and building up on cases with very similar facts, so that this ground of review might be limited to such facts]
I would dismiss this appeal on the ground that there was unfairness arising from the failure of Havering to provide to the inspector the full and material planning history of the site. The inspector made her decision under the false impression that she was possessed of that history, but unfortunately she was not.
Review of Findings of Fact (NB Craig, ch 15)
R (CJ) v Cardiff CC [2011]
C entered the UK illegally and claimed to be 15 years old and therefore duties were owed to him under the Children Act. The local authority determined that he was over 18 because his accounts were inconsistent and not credible. On application for JR, held that the burden of proof fell upon the Claimant to prove that he was under 18.
Held (CoA): speaking of a legal burden of proof is incorrect. But, notwithstanding this, appeal dismissed because even if he didn’t apply the test he would inevitably have reached the same result.
Pitchford LJ: Croydon settles the question of whether, in the event of a challenge to the decision of a local authority as to the claimant’s age, the High Court was required either to reach its own decision as to the claimant’s age or, alternatively, the challenge was by way of review of the local authority’s assessment on Wednesbury principles alone.
Baroness Hale (with whom the other members of the SC agreed) distinguished between the question of whether the child was “in need” within the meaning of the Act (a question for the PDM to decide subject to the control of the courts on ordinary principles of JR), and the precedent question of fact whether the individual was a child (there is a right or a wrong answer – it may be difficult to determine what the answer is, but that’s true of many questions of fact that regularly come before the courts, and it doesn’t prevent them from being questions for the courts).
Lord Hope agreed and said that the question of whether someone is a child is a question of fact that must ultimately be decided by the court – however difficult it may be to resolve the issue, it admits of only one answer.
Review of Findings of Fact (NB Craig, ch 15)
Bubb v L B of Wandsworth [2011]
Issue was whether a letter has been delivered, and whether the PDM’s decision that the applicant had received the letter could be challenged on JR. The trial judge did not decide the question himself.
Lord Neuberger: the appellant’s argument is that the judge should have determined the issue of whether the letter was received by the applicant because the issue raises not an assessment involving a value judgment, but a question of hard fact to be determined by the court for itself (Croydon).
But that case is of no assistance here, because that decision was reached on the wording of the particular Act in that case, and not on any other basis. “Indeed, it would be rather surprising if it were otherwise: one would expect the allocation of functions in connection with the performance of a statutory duty to be determined by reference to what the statute in question provides.”
It can be said that questions like whether an applicant is homeless and whether an applicant has priority are value judgments expressly assigned to the local authority, but whether someone received notification is a “true or false” question whose determination is not so expressly assigned – but “even this division of issues into two types is not as clearcut as it might first appear. The former type of question may involve the determination of hard facts (eg whether an allegedly homeless applicant’s former home has or has not been relet), and the latter question may involve a value judgment (eg whether the applicant is an honest person with a clear recollection)” [so it’s not very clear at all what is a right/wrong answer type of question, unlike what Williams suggests].
Therefore rejects the contention that the trial judge should have decided the issue again.
The Fact / Law Distinction (cases above … and…)
Edwards v. Bairstow [1956]
Held: The facts found led to the conclusion that no person acting judicially and properly instructed on the law could have reached the determination reached; as such the court had no choice but to conclude that there had been a misconception of the law responsible for the decision (Lord Radcliffe).
Viscount Simonds: in my opinion, whatever test is adopted, that is, whether the finding that the transaction was not an adventure in the nature of trade is to be regarded as a pure finding of fact or as the determination of a question of law or of mixed law and fact, the same result is reached in this case. The determination cannot stand because “the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained”.
The primary facts don’t justify the PDM’s conclusion, but lead rather to the opposite conclusion. “It is therefore a case in which, whether it be said of the commissioners that their finding is perverse or that they have misdirected themselves in law by a misunderstanding of the statutory language or otherwise, their determination cannot stand.” [So this goes to Williams’ point that we should just stop wasting time to say whether it’s a question of law or fact or whatever, and just say that all the evidence leads to one conclusion whereas the conclusion reached was the opposite so it can’t stand].
What is a question of fact: the Scottish approach - Where the PDM, having found the parimary facts, proceed to their finding that the subject matter in this case was not “in the nature of trade” (the X factor), this is an inference of fact if it is assumed that the PDM is rightly directed in law what the characteristics (that distinguish an adventure in the nature of trade) are. “It is a question of law what is murder: a jury finding as a fact that murder has been committed has been directed on the law and acts under that direction.”
Lord Radcliffe: it is a question of what what meaning is to be given to the words “nature of trade” in the statute, because we have a statutory phrase and it’s for the court to interpret its meaning. But the statute doesn’t specify the meaning of “trade”, but insteand lays down the limits within which it would be permssible to interpret it. Cases in which the facts warrant a determination either way can be described as questions of degree and therefore as questions of fact.
The Fact / Law Distinction (cases above … and…)
Moyna v. Secretary of State for Work & Pensions [2003] 4 All ER 162, HL
that the test involved applying an imprecise standard and taking into account a number of factors, so that there would be cases arising where an appellate court could not say that the tribunal must have erred in law in deciding the case either way; that, further, the question whether facts found or admitted fell within a legal category was a question of fact so as to preclude interference by an appellate court with jurisdiction to entertain appeals only on questions of law, unless the decision fell outside the bounds of reasonable judgment
Lord Hoffmann: the question involves taking “a broad view of the matter” and making a judgment, and in any case in which a tribunal has to apply a standard with a greater or lesser degree of imprecision and to take a number of factors into account, there are bound to be cases in which it will be impossible for a reviewing court to say that the tribunal must have erred in law in deciding the case either way.
Obiter (because the above point was sufficient to dispose of the appeal): There is ample high authority for saying that the question of whether the facts as found or admitted fall one side or the other of some conceptual line drawn by the law is a question of fact (Edwards v Bairstow); this means in practice that an appellate court with jurisdiction to entertain appeals on questions of law only will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgment.
It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whetherthey fall within some legal category. Likewise it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment.
