Jurisdiction Flashcards

Question

Craig textbook: Error of Fact - Determination of factual error: role of reviewing court

Answer 1

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)

Answer 2

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. Per Lord 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.

Answer 3

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 question is 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???]

Answer 4

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.

Answer 5

Held (Lord Mustill and Slynn dissenting): 1. 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 2. 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 3. As such, court had no jurisdiction to review visitor’s construction of the university statutes Lord Browne-Wilkinson (Lord Keith, Griffiths agreed): 1. 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) 2. 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) 3. 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 4. 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. 5. 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?] 6. 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: 1. 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 2. 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) 3. 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): 1. Dismisses the appeal because the decision of the visitor was right, but concludes that it is still reviewable Lord Slynn (dissenting, Lord Mustill agreeing): 1. Accepted since Animisnic that that judicial review is available to quash errors of law whether or not they go to jurisdiction 2. 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 3. 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 4. 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 5. 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 6. But since no error has been made, the appeal is to be dismissed.

Answer 6

Lord Mustill (Lord Templeman, Goff, Lowry, Slynn agreed): 1. 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 2. 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) 3. 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. 4. 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” 5. 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.

Answer 7

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 – 1. The interst to national security must be supported by evidence 2. 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.

Answer 8

Baroness Hale 1. 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. 2. 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? 3. 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: 1. 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) 2. We might return to the technicalities of the past (eg. asking the wrong question/applying the wrong test – unsatisfactory questions) 3. 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 4. 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. 5. 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. 6. Since nothing in the case brings the claimant within the second-tier appeal criteria, they weren’t entitled to judicial review. Lord Phillips 7. 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. 8. 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?] 9. Then endorses the conclusion of Baroness Hale.

Answer 9

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.

Answer 10

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 (howsoever described, 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 of Wednesbury 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.”

Answer 11

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

Answer 12

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.

Answer 13

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.

Answer 14

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.”

Answer 15

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 the Wednesbury sense - 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.

Answer 16

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.

Answer 17

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.

Answer 18

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].

Answer 19

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 A points 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.”

Answer 20

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.

Answer 21

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.

Answer 22

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.

Answer 23

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.

Answer 24

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 whether they 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.

Answer 25

1. Courts take a pragmatic rather than analytical approach to identifying questions of law; it’s useless to ask what questions are questions of law and instead should ask what questions it would be useful to treat as questions of law. 2. Distinction important because: a. They’re treated differently in criminal law b. Misrepresentation of fact and law treated differently in contract c. Rules of pleading require party to plead facts and prohibit pleading of law d. Distribute decision-making power and responsibility i. Judges decide law, jury decides fact ii. Court sets precedent to bind a later curt on question of law, but not fact iii. Court interferes in judicial review with questions of law, but not often of facts 3. Most dramatically, courts developed their own supervisory review of admin decisions so they can reverse them on questions of law without statutes conerring on them a power to do so: Page doctrine – in general any error of law made by admin tribunal/inferior court in reaching its decision can be quashed for error of law a. As such review for error of law is its own rationale (why is judicial review available against error of law? Because it’s an error of law…) 4. As such HL partly abolished distinction between review and appeal, both of which are available to correct erros of law 5. Purpose of distinguishing is to distribute decision making between court and tributnal; it must improve admin decision-making. As such, a solution should be that a question of application is treated as a question of law when doing so will give effect to the court’s view of what the law requires (when the law requires a particular answer)

Answer 26

Discusses problems surrounding the review of jurisdictional error. Highlights the circumstances for reviewing errors of fact, namely: (1) error of jurisdictional or precedent fact,; (2) review of evidentiary findings; and (3) misunderstandings of established and relevant fact, noting the Court of Appeal decision in E v Secretary of State for the Home Department. Considers rationality arguments and the review of discretion rather than the correction of error in existing case law. Suggests ways to restructure the existing approach. I – The impact of E Craig: “intervention is [now] possible in principle for all species of mistake of fact” and thus “we should no longer seek to draw formal distinctions between different species of factual error”. This (misunderstanding or ignorance of an established and relevant fact) category has subsumed the other categories (evidential review and jurisdictional fact) to create one large category of “material error of fact” (equivalent to “relevant error of law”). This is not to be welcomed unreservedly: greater court intervention = less autonomy of PDM. - The US expressly rejected this - R. (on the application of Iran), the Court of Appeal noted that to make too great a use26 of the ground of review in E would be to “reintroduc[e] an appeal based on errors of fact through the backdoor”. The challenge is this: - any attempt to categorise cases in which the courts will intervene results in the boundary of that category being manipulated so that in practice the courts simply intervene when they have pragmatically good reasons for doing so - but if we accept that it is not possible to draw analytical distinctions between different categories of case and we thus conclude that in practice anyerror is prima facie reviewable, we open the door to potentially damaging levels of judicial intervention Craig’s suggestion: focus instead on the level of failure necessary for a finding that there has been an error by the original decision-maker. But to adopt this approach changes the conceptual basis of courts’ intervention. II – Are all Errors the same? Where there is a right answer (ex Haile) then the court can talk about a mistake, but where there isn’t an objectively right answer, the court must accept that it’s not detecting errors but reviewing the exercise of the PDM’s discretion – whereas in right-answer cases, the answer justifies the intervention, in such cases the court must justify its control and establish the precise level of intervention in the usual way taking into account various factors (ex. did Parliament locate the power to define a statutory term with one body rather than the other, if not, relative institutional competence). - Pearlman: particular importance of a consistent and centrally-determined definition of a statutory term, therefore, responsibility for defining it is with the courts rather than several different PDMs Discretion cases: - South Yorkshire Transport (court defined ‘substantial’ and the criteria for establishing this, but then said that the criterion may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. The court will only review if the decision is aberrant and cannot be classed as rational) - Puhlhofer: (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 acting perversely: Lord Bingham) Applying the distinction, it must be possible to determine the cases that fall into each category – to do so we must interpret “objectively verifiable” narrowly. This distinction isn’t really necessary, but in right-answer cases, it would be more straightforward than rationality review.

Answer 27

JR ensures that decision makers do not transgress the limits on their power, as limited by express / implied terms of the statute conferring power, and general principles such as natural justice and reasonableness.

Answer 28

Fine line: jurisdictional and non-jurisdictional issues: In relation to any executive action, the more factors that are regarded as jurisdictional, the smaller the decision-maker’s discretion. If too many factors are regarded as jurisdictional, then everything becomes a decision for the courts. Too far the other way, and the DM can set the limits of his own powers and can exceed statutory authority (creating RL issues). Anisminic illustrates the tension between the competence of executive bodies and the purview of the court: • Anisminic [1969]: essentially an issue of statutory interpretation — the Foreign Compensation Act 1950 provided that “the determination by the commission of any application made to them under this Act shall not be called in question in any court of law.” HL: decision was reviewable — whilst the courts act on the basis that they are effectuating the will of Parliament in reviewing public bodies, that purpose does not impose inherent limits on the extent of review. o Although note the court did not overtly override Parliamentary Sovereignty here — they used statutory interpretation to find that a ‘determination’ made outside jurisdiction was not a determination within the statutory meaning.

Answer 29

1. Lack of expertise: subject matter may be specific and sensitive. 2. Public resources: court interference can disrupt plans for public expenditure — public bodies cannot be treated in the same way as private parties. 3. Understanding of statute policy: may well be that executive bodies have a better understanding of the policy under a statute.

Answer 30

1. Uniformity under the law (risk of unpredictability): Definitions may differ in particular contexts, but unsatisfactory for same word to have different meanings / for inconsistency to carry legal effect. 2. Restraint of public bodies: there needs to be some limit on the ambit of public bodies; it is of concern that public bodies are able to make decisions with legal effect.

Answer 31

Regarded some errors of law as non-jurisdictional: distinction between errors going to the kind of case (jurisdictional error, asks ‘was the kind / type of case within the scope of the tribunal’?) and errors as to the situation to be determined (non-jurisdictional, truth / detail of case). Craig: collateral fact distinguishes “those elements within the bracket which could be regarded as conditioning the power of the tribunal to go and consider the merits from the merits themselves.”

Answer 32

• Line between ‘types’ and ‘situations’ is impossible to draw: o Craig: “line is impossible to draw with any certainty, because the definition of ‘type’ or ‘kind’ is inevitably comprised of discretions in the statute of the ‘situation’ which the DM has to determine. The former represents the sum, the latter the parts. o I.e. the type of case can only be determined with references to instances of type. • Fine line gave courts scope for results-based reasoning: whenever courts wanted to review an error of law they would hold it as jurisdictional and vice-versa. Wade and Forsyth: “it requires only a simple verbal manipulation … any error of law could be shown to involve an excess of jurisdiction.” o Denning in Pearlman v Keepers [1979]: “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.” • Equality problem: if a court cannot intervene to correct DM’s non-jurisdictional errors of law, then they remain uncorrected and different DMs may attach different meanings to the same legal provision — the outcome of a case may therefore depend on which DM handles it. Thus, Denning in Pearlman: it is intolerable that an individual’s rights should depend on the judge who tries a case: “no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends.”

Answer 33

1. Anisminic (facts above) did not formally abolish the collateral fact doctrine, but did cast it into doubt: • HL undermined the doctrine by recognizing that an error of law within the jurisdiction of a DM could be subject to JR: o Reid: “there are many cases where, although the [DM] had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity.” o Wilberforce: “cases in which a [DM] has been held to have passed outside its proper limits are not limited to those in which it had no power to enter upon its inquiry or its jurisdiction.” 2. However, Anisminic left uncertainty in its wake about whether non-jurisdictional errors survived. For example: Pearlman v Keepers [1979] (was the interpretation of the term ‘structural alteration’ in a statute a jurisdictional error?) CA: disagreed, majority through it was, Lord Lane dissented: • Lane: if this is held to be a jurisdictional error of law, then the distinction is meaningless: “it seems to be that if this judge is acting outside his jurisdiction then so is every judge who comes to a wrong decision on a point of law.” • Everleigh: accepted the distinction, but thought it was a jurisdictional error as “this was a collateral matter. It had nothing to do with the merits of the case.” • Denning: Distinction is meaningless and consistency justifies all errors of law to be subject to JR. 3. The HL in Recal considered Anisminic to have abolished the collateral fact doctrine, at least as it relates to administrative tribunals and authorities: • Re Racal Communications [1981]: DPP argued that a judge’s misconstruction of the Companies Act 1948 was a jurisdictional error of law. Lord Diplock: o Administrative tribunals and authorities any error of law can be reviewed, presumption that Parliament did not intend them to authoritatively determine points of law, but this can be rebutted by clear statutory wording. “The break-through made by Anisminic was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished.’ o Inferior courts no presumption, rather a matter of statutory construction (did Parliament intend them to settle points of law?), error of law within jurisdiction is still a possibility here. o High Courts: no possibility of JR, just statutory appeal. 4. Lord Diplock’s comment in O’Reilly v Mackman [1983] seemed to extend the Anisminic decision to inferior courts as well as administrative tribunals and authorities: “Anisminic has liberated English public law from the fetters that the courts had imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned.” 5. Page

Answer 34

Turning point came in Page when it was held that the collateral fact doctrine was obsolete: • Page [1993]: was the Visitor of Hull University’s interpretation of University statutes open to review (he had made a determination that ‘redundancy’ was within the meaning of ‘good cause’ for ending a staff employment contract)? Lord B-W: o General rule: “In general, any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for errors of law.” This is because “Parliament had only conferred the DM power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires.” o Specific system of rules: not all bodies are subject to JR, specifically those dealing with domestic law (i.e. a specific set of rules, such as those of a University), as such the Visitor’s decision was not open to JR. The courts have no cognizance of such rules so “he cannot be acting ultra vires and unlawfully in applying his view of the domestic law in reaching his decision.” Benefits to “an informal system which produces a speedy, cheap and final answer to internal disputes.” Although Page is helpful, it merely provides a starting-point: the presumption now is that questions of law are jurisdictional, but exceptions remain. Today, then, the difficult question is what are (and should be) the exceptions to the general principle laid down in Anisminic and affirmed in Page?

Answer 35

(i) error must be causative (affect the decision itself); (ii) not all bodies are subject to JR (e.g. those adjudicating domestic rules); (iii) High Court decisions not subject to review; (iv) remedies are discretionary.

Answer 36

• It may have merely shifted the issue onto the law / fact distinction. • Not obvious that courts should be the only bodies to conclusively determine questions of law. In the US, Chevron USA v National Resources Defence Council [1984] holds that courts should only substitute their interpretation of statutory terms where it is apparent that the legislature had a specific intent as to meaning. If it does not, then DM should be allowed to adopt any rational interpretation. o Sunstein: US approach fits with agencies’ specialized competence and political accountability. o However, reliance on legislative intention (hard to discern) might be a poor substitute for engaging with a richer set of concerns relating to justiciability / relative institutional competence. o Farina: (argues against Sunstein): separation of powers may favour court supervision: “if Congress chooses to delegate regulatory authority to agencies, part of the price of delegation may be that the court, not the agency, must hold the power to say what the statute means.” • Endicott: Anisminic was the only authority for abolishing the distinction and it does not support the conclusion — counsel in that case had asked HL to abolish the distinction, but HL had refused. Further, no independent rationale is given for the general rule merely that an error of law should be quashed because it is an error of law. Elliott: Lord B-W’s exception for systems of domestic rules implies there are situations in the realm of public law where the courts will not intervene on a point of law “the general approach, which holds that errors of law are jurisdictional, may (exceptionally) yield in the face of practical considerations.”

Answer 37

In differentiating between inferior courts and administrative tribunals / other DMs, Recal was concerned with institutional competence — which bodies are competent to authoritatively determine issues of law (e.g. statutory interpretation)? However, Recal might be criticized for drawing the line in a formulistic way — as Cart recognizes, some tribunals may have specialized institutional competence.

Answer 38

The SC take a pragmatic approach in Cart — JR of UT decisions only where issue is important: • Cart [2011]: individuals who had been refused permission to appeal by the Upper Tribunal sought JR of that decision. Was JR of this decision by the High Court possible? SC: JR is only available if there is some “important point of principle or practice… or another compelling reason.” Issue in Cart was the appropriate role for JR in the tribunals system. Three paths available: o JR is excluded: Gov. argued designation of UT as a ‘superior court of record’ rendered it immune from JR. Rejected as Parliament can only exclude JR (if at all) by use of explicit language o Full JR is available: constitutional case for full JR is that independent courts must have responsibility for ensuring executive decisions are taken in accordance with law; but this is weakened when applied to tribunals and particularly the UT. o JR remained a possibility, but only in some categories of case: path taken by the SC; JR is available in circumstances that basically align with the second-tier appeals criteria.

Answer 39

Whether UT is susceptible to JR and whether it can commit errors of law are two sides of the same coin: • Sedley LJ (CA) nailed his nailed his colours to the mast in doctrinal terms — his judgment reinstated the distinction between jurisdictional / non-jurisdictional error of law: for him, the UT had unusually broad jurisdiction, which meant some errors of law were within their jurisdiction. • SC seems to reject doctrinal tools such as jurisdiction — which promise but often fail to deliver a priori guidance as the reach of JR — in favour of ex post considerations pertaining to the importance of issues raised by the case. Three such factors are apparent from Cart: o Type of interests served by onward challenges: errors of law which only impact individual decisions will not be subject to JR, but errors of law of a broad public interest will. ♣ However, seems to beg the question: why is JR rationed in a way which prioritizes broad public purposes to private interests? Answer is that the SC recognize the need for proportionate dispute resolution — need for efficient allocation of judicial resources. o Limited judicial resources: Hale “There must be a limit to the resources which the legal system can devote to the task of trying to get the decision right in any individual case.” This recognizes that no decision-making system is perfect and a certain level of error must be tolerated, because the costs of correcting every error would be disproportionate given available judicial resources. o Tribunal expertise: SC respects the expert and specialist nature of the UT. This merits a posture of judicial restraint. Indeed, Lord Phillips indicates that a point may come where JR of errors of law is inappropriate (i.e. as the expertise / competence of the UT increases) but for now some judicial oversight is needed.

Answer 40

Note: Cart can be criticized in that: (i) “an important point of principle or practice” is difficult to define; (ii) seems to move back towards collateral fact doctrine; (iii) possible injustice to individuals. Barber: post Cart we have full review of errors of law in some areas, but CFD in others (e.g. for review of the UT).

Answer 41

J sought JR of a decision by the First Tier Tribunal that he did not fall within the definition of ‘victim of a crime of violence’ so he could claim compensation under a statutory scheme. SC: applied the decision of the FT. Lord Hope: potential for inconsistencies is limited because the UT can “develop structured guidance on the use of expressions which are central to the scheme … reducing the risk of inconsistent results by different panels [of the FT].” Therefore, “the interpretation and application of a specialized statutory scheme” should be “primarily for the tribunals, not the appellate courts.” • He suggests that “a pragmatic approach should be taken to the dividing line between law and fact, so the expertise of tribunals [at both UT and FT level] … can be used to best effect.”

Answer 42

South Yorks establishes that some statutory terms can bear more than one reasonable interpretation: • South Yorkshire Transport [1993]: issue was whether a merger affected a ‘substantial part of the UK’. Lord Mustill: ‘substantial’ could have a range of possible meanings and there may be multiple valid legal (but different) answers; what matters is that the answer given is within this range. o As here, where the statutory wording is ambiguous, “the court is entitled to substitute its opinion for that of [the DM] …only if the decision is so aberrant that it cannot be classed as rational.” o Although the court will identify the criterion for judgment (e.g. the meaning of ‘substantial’) In summary: (i) court identifies the criterion for judgment (e.g. the meaning of ‘substantial’); (ii) application by DM must be within the range of rational meanings; (iii) if the criterion is particularly imprecise, the court can only intervene if the decision is aberrant. Mustill holds that DM can act lawfully by choosing a meaning within the range of possible correct answers — the standard of review is reasonableness, rather than correctness. • This is in line with the US SC in Chevron: substitutionary review will not apply where there is ambiguity in the meaning intended by the legislature. Rebecca Williams argues that the reasonableness standard should be the norm, and substitutionary review limited to cases in which it’s clear the statutory term could only hold one meaning. In cases where the language is ambiguous, it is meaningless to speak of an error of law because error is only possible where there is one correct answer. The courts should acknowledge they are reviewing an exercise of interpretive discretion and only intervene where a clear error occurs.

Answer 43

South Yorks was endorsed in Moyna and Hoffmann seemed to take the reasonable analysis further: • Moyna [2003]: C challenged a decision to deny her disability benefits because she could ‘cook a main meal for herself’ (statutory test). Lord Hoffmann: in cases where “a tribunal has to apply a standard with a greater or lesser degree of precision … 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.” The court should not overturn a decision applying law to facts “unless it falls outside the bounds of reasonable judgment.” There is an inherent vagueness problem to South Yorks: at what point does a term become so ambiguous that it is open to a range of possible meanings? EP: if this test were generally adopted (per Williams), then courts will intercede when they think it necessary with other factors weighing in the decision — e.g. importance of having a clear statement of law and the institutional competence of the body

Answer 44

* On one hand they seem to aim at different things: Page is in favour of broad powers of intervention for the courts — they intervene to correct any error of law, providing a basis for quashing the decision of a DM. However, South Yorks is much more deferential to DMs and a reasonable interpretation, even if not the one the court would adopt, is not a ground for quashing a decision. * Can be seen as a distinction between procedure and substance: It is possible to see Page as allowing the courts to, in principle, review any error of law and South York controlling the intensity of review.

Answer 45

• “Arguments about where judicial deference is appropriate must be conducted in … terms of constitutional principle. Judicial deference may be required where a decision has policy implications which lie in the realm of executive competence but if this is the justification for judicial abstention, it is incumbent upon the courts to articulate their reasoning in terms of concepts such as justiciability rather than as an exercise in statutory construction. This will require the court to be much more explicit about the type of considerations which engage the political responsibilities of administrative agencies and should render judicial intervention more predictable.”

Answer 46

• Craig argues any interpretation of a statutory term can be a question of law. If this is the case, then there is no improvement from the collateral fact doctrine — as before, if the court wants to review a decision, they will just attach the label ‘error of fact’ and vice-versa. o This can be seen in Jones: the issue was whether C had suffered as the result of a ‘crime of violence’ when a bus swerved to avoid a man who ran into the road to commit suicide. The SC considered this to be an issue of fact, but it could be construed as a question of law (could malice against himself, post-Gnango, be considered a crime of violence). o In Moyna Lord Hoffmann admitted as much: “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 whether they fall within some legal category … [However] it causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of a tribunal will vary with the nature of the question.” But the lack of clear distinction is OK because it allows the court to vary the level of review. o In Lawson v Serco [2006] (case involved the meaning of ‘“peripatetic employments” in the Employment Rights Act 1996) Hoffmann took this further: “whether one characterizes this as a question of fact depends… upon whether as a matter of policy one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review.” o Hoffmann’s comments in Moyna and Serco were offered explicit support from Lord Carnwath in Jones, who said: “it seems now to be authoritatively established that the division between law and fact… is not purely objective, but must take account of factors of ‘expediency’ or ‘policy’.” Factors to be taken into account include: (i) development of the law in a particular field; (ii) relative competencies of the DM and the court. Further, even if the question is one of law, the view of the tribunal “must be given weight.”

Answer 47

a flexible approach, based on relative institutional competence, in Pendragon: • Pendragon [2015]: was a VAT scheme an “abuse of law” for the purposes of EU law? It didn’t matter whether the issue was described as one of law and fact, or the evaluation It matters little whether it is described as involving an issue of mixed law and fact, or of the evaluation of facts in accordance with legal principle. However, it is described it was clearly one which was particularly well suited to detailed consideration by the Upper Tribunal.”

Answer 48

Craig: points out that, in some cases — e.g. Edwards v Bairstow [1956] — the courts seem to think that questions of law seem to be those to which there is only one possible answer, whereas if there is a range of possible alternatives, it must be a question of fact. • EP: although this may not be an conceptually convincing test — as Craig notes “a legal issue does not cease to be such simply because the term in question is open to a range of possible meanings” — it may be a good marker for when the court should intervene — i.e. similarly to South Yorks, where there are a range of possible alternatives the court will attach the label ‘fact’ to justify not intervening.

Answer 49

Although certain facts are clearly isolated to questions of fact, many are intertwined with questions of law • Jurisdictional error or ‘precedent fact’: relates to the application of a definition to a set of facts — such jurisdictional preconditions must be met for a DM to act within jurisdiction. • Fundamental factual error: relates to the fact finding process — more easily distinguished as a pure error of fact. Four categories: (i) disregarding / ignoring facts; (ii) evidential problems, i.e. not evidence supporting decision reached, or all evidence points away from conclusion reached; (iii) connection with the use of other grounds of review — taking into account relevant facts can be Wednesbury unreasonable; (iv) misunderstanding or ignorance of an established and relevant fact. On a narrow view, only factual preconditions to the exercise of jurisdiction should be reviewable on a broad view, both factual preconditions and some fundamental factual errors should be reviewable. The traditional view is jurisdictional errors of fact are reviewable, but non-jurisdictional errors are not,

Answer 50

If a certain state of facts has to exist before a DM has jurisdiction, then making a decision where those facts do not in fact exist, will be outside the jurisdiction of the DM and the court will intervene:

Answer 51

Khawaja [1984] Home Office had determined that Cs were ‘illegal entrants’ to the UK by virtue of having made ‘false representations’ to immigration officers. HL: C1’s appeal was successful because the Home Office had not proved that C1 had obtained permission to enter by deception; C2’s appeal was denied because he had actively deceived an officer. • Lord Bridge: HO argued that the decision to remove someone as an ‘illegal immigrant’ can only be reversed if there is no evidence on which such a conclusion could reasonably have been reached, but this would give them “a draconian power of arrest and expulsion based on his own decision of fact.”The courts should “regard with extreme jealousy any claim by the executive to imprison a citizen without trial,” such that it should only be justified where there is clear statutory language. Therefore, the immigration authorities’ power to remove the appellants and to detain them pending removal would only arise if they were actually illegal entrants; the burden is on the authorities to satisfy the court that, on the balance of probabilities, that jurisdictional precondition had been met. • Lord Wilberforce: “the court’s investigation of the facts is of a supervisory character and not by way of appeal … it should appraise the quality of the evidence and decide whether that justifies the conclusion reached … if the court is not satisfied with any part of the evidence it may remit the matter for reconsideration or itself receive further evidence.”

Answer 52

There were strong policy reasons for finding ‘illegal immigrant’ was a precedent fact in Khawaja. However, Beatson notes that compelling reasons for judicial deference may arise in this context: • Competence of courts as fact finding bodies: courts should respect the factual findings of a body which takes evidence / has expertise in a given area; courts themselves have more limited fact-finding powers, often relying on addadavit evidence. • Judicial intervention in factual matters is more likely to defeat legislative intentions in allocating the implementation of a policy to an administrative body: o Judicial intervention in factual matters is more likely to defeat legislative intentions in allocating the implementation of a policy to an administrative body.

Answer 53

• In Khwaja it was the potential for infringement of the appellant’s rights that militated towards a finding that there was a precedent fact. • In Moyna Hoffmann noted that the finding will “vary with the nature of the question” • In Croydon Lady Hale draws a distinction between several kinds of question: o Questions which require value judgements, e.g. whether a child is ‘in need’, go to issues such as “what services should the local authority provide” and here “it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority” with control via fair process / Wednesbury unreasonableness. o Questions where there is a clear right / wrong answer: e.g. whether a person is ‘a child’.

Answer 54

raises exactly the same problems as did the distinction between jurisdictional and non-jurisdictional error of law; there is no easy means of telling when a fact will be ‘precedent’ or ‘jurisdictional’ and when it will not — ‘precedent’ or ‘jurisdictional’ can simply mean ‘reviewable’ and beg the question of when and why that should be.

Answer 55

Lord Slynn appeared to show a preference for the broad view in ex parte A [1999]: considering a decision of the Criminal Injuries Compensation Board, he cited Wade and Forsyth’s view that “mere factual mistake has become a ground of review” and, because the CICB had decided a claim without viewing a crucial police doctor’s report stated: “I would accept that there is jurisdiction to quash on the grounds in this case, but I prefer to decide the matter on the alternate basis, namely that what happened in these proceedings was a breach of the rules of natural justice.” Lord Slynn did not get a great deal of support in A; more of the court went with him in Alconbury, then we get E.

Answer 56

concerned a tribunal’s refusal to allow new evidence after C’s hearing had taken place. These were appeal proceedings in the CA, but Carnwath LJ made it clear the same principles would relate to JR: he suggests errors of fact can be reviewed based on fairness: ex parte A points the way to a separate ground of review, based on the principle of fairness… a mistake of fact giving rise to unfairness is a separate head of challenge… at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result.” The limits on this are: • Mistake as to existing fact (including availability of evidence) • The fact must be established (i.e. it was uncontentious and objectively verifiable — high hurdle). • Appellant was not responsible for the mistake • It was a material mistake (played a part, albeit not decisively, in the tribunal’s reasoning). • Potential requirement: parties must have “interest in co-operating” not really clear what this means. NB: Carnwath held: should new evidence be required to prove a mistake of fact it will be admitted under the Ladd v Marshall [1954] criteria: (i) fresh evidence could not have been obtained with reasonable diligence for use at the trial; (ii) if given it would have influenced the result; (ii) it is credible, though not necessarily incontrovertible. Although these principles will not be applied inflexibly.

Answer 57

notes that some difficulty is to arise concerning the second requirement — that the fact must have been uncontentious. And the full impact of E can only be understood in conjunction with the rules on evidence (i.e. the Ladd criteria may be decisive in limiting the scope). Both of Craig’s points are illustrated by R(Iran) [2005]: several appeals, two of which concerned the argument that an immigration tribunal had failed to consider expert evidence (concerning risks to Afghan political activists if deported) which constituted a mistake of fact giving rise to unfairness under E: • The kind of mistake required by E “could not be identified by the… court unless it was willing to admit new evidence in order to identify it.” • To find E applied “would be to stretch the principles identified by Carnwath LJ in E impossibly far” because, here, the expert evidence “was drawn from what a number of people had told him” and was therefore not uncontentious and objectively verifiable.

Answer 58

Two possibilities: (i) per Craig, all mistakes of fact can now be reviewed; (ii) per Elliott, E is supplemental to jurisdictional error of fact: o Craig: E provides the “foundation for future development in this area.” It is positive that E makes “intervention possible in principle for all species of mistake of fact” and although “proof of the requisite unfairness may well depend on the type of factual error” we should avoid formal distinctions. For Craig, E is the Page of mistake of fact; all mistakes of fact can be reviewed. o Elliott: E “establishes that in some circumstances a mistake of fact giving rise to unfairness will deprive the decision maker of jurisdiction so that it can be corrected.” E is supplemental to jurisdictional error of fact cases: (i) all jurisdictional error of fact is reviewable (Khawaja); (ii) non-jurisdictional error of fact in the fact-finding process may be reviewable following E. E is unclear as to which interpretation is correct, but later case law seems to favour Elliott: • R( Croydon) [2009]: Cs contended the LA were obliged to provide them with accommodation under the Children Act 1989 — issue was whether C was a person under 18. Lady Hale: makes no reference to E, but does reference the pre-E case law on jurisdictional fact (e.g. Khawaja) and thinks it important whether the “issue ‘child or not’ is a question of ‘precedent’ or ‘jurisdictional fact’ to be decided by the court”. Three Justices agreed with her on this point (although it’s not the ratio of the decision).

Answer 59

• Gordon: Theory of Limited Review: As long as the tribunal asks itself the right questions, the conclusions do not matter. However, the issue with this is that any decision maker can easily insulate its decision from review by incanting the right question to begin with. • Gould: Theory of Extensive Review: All determinations about X factors go to jurisdiction and can be replaced by the court for three reasons: 1. Parliament intended these decisions to be for the ordinary courts: o Craig: there is no evidence for this, it doesn’t fit with constitutional theory or the judicial deference inherent in the collateral fact doctrine. 2. If the court has decided that there is a correct definition of the term, this means that the decision-maker can be found to have made an error of law o Craig: This confuses cause and effect; if the courts examine a question and come to a different conclusion that that of the DM, then they will conclude an error of law, but this doesn’t say what gives the courts the right to intervene. 3. Only by having the courts decide can uniformity of definitions be established. o Craig: The uniformity point doesn’t apply where there is only one tribunal operating (e.g. the OFT) or where it has an internal hierarchy. Collateral fact doctrine: Misconstruction of the kind of case as opposed to misconstruction of the situation to be determined. See above for criticism.

Answer 60

• Against broadening: Potential for courts to be inundated with error of fact cases and see Beatson (reasons for deference) above. • Pro-broadening: o Farina: to see judicial deference as necessary in this context is fundamentally to misperceive the separation of powers doctrine. It could equally be the case that judicial power to determine the meaning of a statute is simply the price to be paid for delegation of Congressional power to a regulatory agency. To do otherwise would be to allow foxes to guard the henhouse (Sunstein). o Elliott: “even if we accept that there may be occasions on which it is appropriate to respect agencies’ interpretations of the law, it is unclear that the Chevron reasoning [i.e. review only where there is an apparent specific legislative intent as to meaning] correctly identifies those occasions. Reliance on (no doubt hard to discern) legislative intention is a poor substitute for engaging with a richer set of concerns relating to justiciability and relative institutional competence.” Williams no analytical rules will help and the issue is really one of allocation of institutional competence. My thoughts I think go Williams, then use Hare (see above) to add more — the courts should be explicate about the reasoning they are using.

Answer 61

Exclusion clauses are statutory provisions which prima facie attempt to prohibit JR of the exercise of discretionary powers; such provisions raise a fundamental tension between the rule of law (strongly favours access to the courts) and the constitutional duty of the courts, following parliamentary sovereignty, to give effect to the will of Parliament. Courts traditionally attempt to reconcile the two through statutory construction (i.e. presumption Parliament would not exclude JR, need clear words). A finality clause (i.e. ‘decision of a tribunal is final’) will usually prevent appeal, but not JR — the courts presume Parliament intended the final decision to have been made by a tribunal in accordance with the law, where it goes wrong in law, the decision can therefore be quashed. The strength of the interpretative presumption is clear from Anisnimic: ouster clause was framed in very clear terms (Commission’s ‘determination’ “shall not be called into question in any court of law”) but the HL found it did not prevent their jurisdiction to review by interpreting ‘determination’ to mean one made within the Commission’s jurisdiction, any non-jurisdictional determination was subject to JR. • Lord Reid: “if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.”

Answer 62

Following Anisminic, exclusion clauses were still potentially effective • South East Asia Fire [1981]: PC: found that a ‘no certiorari’ (quashing order) clause in a statue was effective to prevent the Malaysian High Court from quashing an order of the Industrial Court, but it would not have been wide enough had it been a jurisdictional error (had the court exceeded its jurisdiction), rather than an error on the face of the record. However, Anisminic and Asia Fire were pre-Page, when there was a distinction between jurisdictional and non-jurisdictional errors (and the distinction was viatal in those cases), but now all errors of law are reviewable, ouster clauses will nearly always be ineffective and, therefore, rendered nugatory. • Wade and Forsyth therefore argue that “in order to preserve the vital policy of judicial enforcement of legal limits on administrators powers the courts have been forced to rebel against Parliament.” This accords with obiter comments in Jackson [2005] questioning Parliament’s ability to abolish JR altogether.

Answer 63

“If the meaning of statutory text is not controlled by judicial authority … its scope and content would become muddied and unclear … Accordingly, it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament’s sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament’s statutes are always effective; that is another.”

Answer 64

``` • Fayed [1997]: Secretary of State was not required to give reasons for denying naturalisation under statute. CA: although the SS did not have to give reasons, the statute did not relieve him from the obligation to act fairly: “it is appropriate to draw the inference that Parliament… [did not intend] to exclude the ability of the court to review a decision of the SS on the grounds that he had not complied with any requirement of fairness.” In the present context, natural justice and fairness required that “before reaching his decision, he should inform an applicant of the nature of any matters weighing against the grant of the application and afford him the opportunity of addressing them.” Kennedy LJ (dissent): recognised the stretched interpretation the majority gave to the statute — finding that the words only meant SS did not have to give reasons at the time of his decision, but had to give reasons at an earlier stage did not “properly give effect to the words of [the statute].” ```

Answer 65

Fire Brigades Union [1995] in the different context of courts’ jurisdiction to review prerogative powers: • Lord Mustill (dissent): Court is not the appropriate forum for holding the Government to account, Parliament is: “The present appeal is directly concerned only with the relationship between the executive and the public. Save to the extent necessary for a ruling upon the lawfulness of what the Secretary of State has said and done the HL has no competence to express any opinion on the relationship between the executive and Parliament.” • Lord Keith (dissent): decision is “quite unsuitable” for review; it’s a political / administrative choice

Answer 66

• It should be noted that the cases seeking to restrict the court’s jurisdiction are pre-HRA. • The preclusion of review may interfere with Article 6 ECHR, requiring that a decision must be made by an independent tribunal. o This will be relevant where the initial decision-maker does not qualify as independent under the Strasbourg jurisprudence. o Nevertheless, clear that the Courts are willing to interpret broadly to prevent a constitutional clash DJ: It seems that the best way to oust the effect of the court’s jurisdiction is to strike out the availability of remedies. This leaves the legally investigative nature of the courts functions intact, but takes away its teeth.

Answer 67

Those who wish to use the JR procedure must act quickly. • Senior Courts Act 1981: if there has been “undue delay” court may refuse to grant either the application / remedy. • Civil Procedure Rules, pt. 54 a claim must be filed “(a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose.” Time limits are a context in which the court may be more willing to accept ouster clauses certainty / expedition are of particular importance in many instances of administrative decision making. For example, in compulsory purchase of land — thus, the Acquisition of Land Act 1981 prevents JR of compulsory purchase orders, but make provision for a statutory challenge to a decision (six week time limit). • See Smith and Ostler on the court’s acceptance of this.

Answer 68

1. The bold decision in this case was facilitated by the adoption of a broad conception of jurisdiction, such that a decision maker may commit a jurisdictional error of law either by embarking upon an unauthorised enquiry or by exercising its powers in an unauthorised manner – such as by breaching the principles of natural justice. The ‘original jurisdictional fallacy’ was rejected. 2. The concept of jurisdiction embraced in the case was central to the ultimate impact (or lack of) of the ouster clause. It was held that a ‘determination’ made outwith jurisdiction was not a ‘determination’ in the statutory sense. The ouster clause was thereby effectively neutralised. 3. The idea of a jurisdictional error of law is very clearly recognised. The misconstruction of the statute was deemed a jurisdictional error of law, so the decision could be struck down.

Answer 69

Ironically, although Page established, or affirmed, the general principle that questions of law are jurisdictional, that principle was not applied in Page itself. Page, then, illustrates the first exception to the principle. Note the following comments made by Lord Browne-Wilkinson: This inability of the court to intervene is founded on the fact that the applicable law is not the common law of England but a peculiar or domestic law of which the visitor is the sole judge. It was actually held in Page that the visitor had exclusive jurisdiction, because he wasn’t applying ‘the common law of England’ but a ‘peculiar or domestic law’. The court could not intervene to correct errors of either fact or law – these errors were in this peculiar context non-jurisdictional, and such decisions would not be subject to review. [Judicial review would lie, though, where ‘he has acted outside his jurisdiction (in the narrow sense) [i.e. outwith the four corners of his jurisdiction – entering upon an entirely unauthorised enquiry], or abused his powers or acted in breach of the rules of natural justice’.] There was a great deal of policy behind the decision in the HL. The statutes reflected the intention of the founder, the university was a charitable organisation and the doctrine of ultra vires could not be meaningfully applied (it’s not parliamentary law). Lord BW was also influenced by practical considerations such as the desirable speed and cost of the internal process – benefits which would be compromised if the visitorial jurisdiction was subject to review. This invites the following questions: * Does this exception make sense? What is the underlying policy justification for the exception recognised in Page? * What is the extent of the Page exception? Should it, for instance, apply whenever the decision-maker is better-placed than the court to determine the meaning of the applicable rules? Perhaps it can be argued that superior relative institutional competence could preclude quashing of errors of law under the principle in Page.

Answer 70

Only the HC, CA and SC do not have statutory powers to decide cases – their powers are conferred by the constitution itself. A second area in which the general principle seems not to apply (or at least to be capable of being displaced comparatively readily) concerns decision-makers which themselves constitute courts, or which have court-like characteristics. This point was addressed, obiter, by Lord Diplock in Re Racal Communications Ltd [1981] AC 374: DPP applied to review Racal’s Accounts. The statute provided that if there was reasonable cause to believe that the company might have committed an offence, a High Court judge could make an order to permit such an inspection. He statute also said that such a decision would be unappealable. As such, being aggrieved by the decision, the DPP applied for JR, arguing that there had been an error of law and that the decision should be quashed.

Answer 71

Here Lord Diplock refers to the abolition of the jurisdictional/non-jurisdictional question of law distinction, but then neglects to mention the special position of the high court. He suggests the distinction is redundant in both the context of administrative bodies and tribunals and inferior courts of law. However, Elliott suggests that these remarks were made in passing and it would be wrong to ascribe too much weight to them.

Answer 72

In Page, Lord Browne-Wilkinson appeared to approve of (but did not specifically endorse) Lord Diplock’s comments in Racal. Lord BW sends mixed signals in regard to the position in relation to inferior courts of law. On the one hand he relies on Lord Diplock’s comments in O’Reilly in which no distinction was made between courts and tribunals. On the other hand, in justifying the special position of visitors, he recognised that it may sometimes be appropriate for an inferior court of law to conclusively determine questions of law – implicitly suggesting that the presumption of jurisdictional questions of law applies to tribunals but not to courts. Lord BW seems sympathetic to the Re Racal view.

Answer 73

• Does a distinction between inferior courts and other decision-makers make sense? • Is the assumption on which it is based—that inferior courts have legal expertise but that other decision-makers do not—a defensible one? o Cf. the magistrates’ courts, which undeniably have limited legal expertise, and specialist tribunals, which have considerable expertise in the area of law in which they routinely deal. It is wrong to assume that ‘courts’ have legal expertise, whilst other bodies do not.

Answer 74

A particular question has recently arisen in relation to the Upper Tribunal. The Tribunals, Courts and Enforcement Act 2007 constitutes it as a ‘superior court of record’, which many people thought meant that the UT would be immune from judicial review. However, in R (Cart) v Upper Tribunal [2009] EWHC 3052 (QB) [2010] 2 WLR 1012; [2010] EWCA Civ 859, a more subtle approach was adopted, based on an analysis of the extent of the UT’s jurisdiction.

Answer 75

Court of Appeal, Sedley LJ: Rejected ‘alter ego’ analysis. Far from investing the UT with an equivalent status to the High Court, by providing that the UT should have powers of JR parliament were recognising that the bodies were not equivalent, and ad hoc provision had to be made to allow them that power. The key question was then simply whether parliament had intended to preclude or restrict JR of the UT. The supervisory jurisdiction of the HC is an artefact of the common law, and could only be excluded by explicit words – which were not present in the statute creating the UT. So JR not excluded, but…

Answer 76

[W]e all make mistakes. No-one is infallible. The question is, what machinery is necessary and proportionate to keep such mistakes to a minimum? In particular, should there be any jurisdiction in which mistakes of law are, either in theory or in practice, immune from scrutiny in the higher courts? Having set herself this question, she answered it as follows: [T]he adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual. The doctrinal implication is a rejection of the CA’s jurisdiction-centric approach. It also avoids reintroducing the jurisdictional/non-jurisdictional questions of law distinction. The solution adopted by the Supreme Court is practical and sensible but it is not theoretically satisfactory: • First, it is very narrow being limited to the precise facts of Cart. It offers little assistance in areas other than the refusal of permission to appeal. • Second, the Supreme Court is not clear on whether it was crafting a rule of practice or whether it was laying down a rule of jurisdiction…presumably the former.

Answer 77

If a statutory provision is particularly vague, should reviewing courts be willing to accept that any reasonable interpretation of it by the decision-maker will do? This question arose in R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23. There was a proposal for the South Yorkshire bus companies to merge together and provide a single service. The question was whether or not the MMC’s jurisdiction would be triggered by the merger – the act said this would happen if a ‘substantial part of the UK was affected’. The MMC defined ‘substantial’ as ‘something real or important as opposed to merely nominal’. Substantial has a spectrum of possible meanings. There was a risk of precisely defining inherently vague terms, like ‘substantial’ – an exercise which should be avoided at all costs. He therefore said that any reasonable interpretation of the word would do. As long as the interpretation was ‘broadly on the right part of the spectrum’, the court would not get involved. We can therefore see this as an exception to the rule that questions of law are jurisdictional ones. Here the decision maker had the power to conclusively decide a question of law, even if his decision was erroneous. It would be a non-jurisdictional error of law, so long as it was broadly right.

Answer 78

The Child Poverty Act 2010 provided that a strategy needed to be published which would outline how the government intended to progress towards ensuring that children in the UK don’t suffer socioeconomic advantage. The CPAG sought to argue that the published strategy document provided no detail as to the measures intended to be implemented and therefore was in breach of s.9(7). Held, Singh J that it would be inappropriate for the court to seek to lay a judicial gloss on s.9(7), which contained ordinary language. The section should not be treated as a term of art, or as raising hard-edged questions of law. “Strategy” meant plan at a potentially abstract level, and thus the government were not acting ultra vires in publishing the strategy. The government had the right to make policy.

Answer 79

The question the court was grappling with in S. Yorks and Child action was when do we insist that out interpretation should stand, and when do we instead decide that the decision maker should be given a certain amount of breathing room even when it comes to decisions of law. • In South Yorks, the imposition of a correctness standard (as opposed to irrationality standard) was viewed as the norm. But they allowed a deviation from it on rationality grounds in a position where the term was ‘so vague that it defies any precise definition’. [More intense review] • Chevron approach sits in the middle. There would be correctness review if evidence of a specific intention that that would be the case, whereas review would be on rationality grounds where there was no such evidence. • Williams argues we should have a much less intense standard of review. He thinks that we should only impose correctness when the term is so unambiguous that it could only ever have one meaning – and rationality standard should be the norm. [Less intense review].

Answer 80

This possibility has long been recognised (see, e.g., R v Hillingdon London Borough Council, ex parte Puhlhofer [1986] AC 484, considered below), leading to the criticism that courts manipulate the law/fact distinction as a non-transparent means by which to manage the intensity of judicial review. However, in Jones v First-tier Tribunal [2013] UKSC 19, the Supreme Court was disarmingly open about the possibility of invoking the law/fact distinction in this way. The case can be considered as a sequel to Cart (see above), but its significance potentially transcends the tribunals context.

Answer 81

The court is laying bare the actual reality here. The question of law/fact issue is actually simply made with reference to policy. The courts then reverse reason to give their decision the required gloss of policy in order to make it legitimate. If they decide it is a question of law, they are simply saying that they want to have the last say. The distinction between law and fact should be manipulated so that the bodies with the right level of expertise should decide the relevant issues. It was for the FTT to decide issues of fact – so that is what the SC said they were deciding upon. In other words, expediency requires that, where Parliament has established such a specialist appellate tribunal in a particular field, its expertise should be used to best effect, to shape and direct the development of law and practice in that field. The reasoning here is applicable beyond the immediate context of tribunals cases. Elliott ventures the suggestion that this might be the jurisdictional/non-jurisdictional distinction in a new guise – allowing discretion to come to the forefront. In Jones, then, we have confirmation (if it were needed) that the law/fact distinction has come to eclipse the distinction between jurisdictional and non-jurisdictional errors of law as the principal frontier in this area of judicial review. The latter distinction is largely spent thanks to Page, and so the heavy lifting falls to be undertaken by the former. Like the jurisdictional/non-jurisdictional error of law distinction, the law/fact distinction thus becomes a conclusory device that signals but does not justify judicial (non-)intervention.

Answer 82

This conclusion is in itself unexceptional. But what is noteworthy is how malleable the Supreme Court considered the distinction between law and fact to be. Lord Hope in the lead judgment said: ‘ it is primarily for the tribunals, not the appellate courts, to develop a consistent approach to these issues [of law and fact], 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.’ Two comments may be ventured. First, the pragmatic approach to the distinction is difficult to reconcile with the general thrust of the law of jurisdiction: to place objective limits on powers. Secondly, much of the discussion in this case takes for granted that while questions of law have to be got right, questions of fact are for the primary decision-maker. This sits uneasily with the growing acceptance of error of material fact as a ground of judicial review. The reconciliation is presumably that we are here dealing with appeal, not judicial review.

Answer 83

The consequences of giving into pragmatism might perhaps be to undermine legal certainty. We might quite like Jones to be compensated by CICA, but they should not award compensation as a matter of morals which are subjective and uncertain, but law which is objective and affords parties certainty. Isn’t it quite attractive to let bodies that are quite qualified to make decisions of a certain nature (i.e. the FTT and ‘crime of violence’)? There are jurisdictions around the world that view some errors as always non-jurisdictional – allowing the right bodies to decide them and not reviewing courts. The English approach though says that ultimately a court answers every question of law. Jones does something different. It does not depend on the jurisdictional/ non-jurisdictional analysis – but on the exercise of a pragmatic discretion.

Answer 84

There is clear authority for the proposition that courts can review application questions on a correctness basis—ie that the decision-maker’s view about whether the facts ‘fit’ the legal test can be overturned if the court disagrees with it. Note the comments of Lord Goddard CJ in R v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek [1951] 2 KB 1 at 6: … if a certain state of facts has to exist before an inferior tribunal have jurisdiction, they can inquire into the facts in order to decide whether or not they have jurisdiction, but cannot give themselves jurisdiction by a wrong decision upon them; and this court may, by means of proceedings for [a quashing order], inquire into the correctness of the decision. The decision as to these facts is regarded as collateral because, though the existence of jurisdiction depends on it, it is not the main question which the tribunal have to decide. This approach was applied by the House of Lords in Khawaja v Secretary of State for the Home Department [1984] AC 74, which concerned a discretionary power to imprison and deport ‘illegal entrants’. Immigration Act 1971, there is discretion to detain or deport ‘illegal entrants’. The appellants were detained, but contended that they were not illegal entrants. * Rationality approach: The court had to decide whether the immigration officer’s decision was reasonable. * Correctness approach: was the court itself satisfied, on a balance of probabilities that the appellants were in fact illegal immigrants under the act. The court applied this standard. In Khawaja, Lord Bridge observed that in R v Secretary of State for the Home Department, ex parte Zamir [1980] AC 930, the House of Lords had Applied [the legislation in question] as if it authorised the removal of a person whom an immigration officer on reasonable grounds believes to be an illegal entrant. The all important question is whether such an implication can be justified. In other words, the question was whether judicial review should lie on a rationality or a correctness basis. Their Lordships concluded in Khawaja that the latter approach should apply. But why? On the facts, there were fundamental rights at stake, so in effect this was an application of the principle of legality.

Answer 85

There is clear authority for the proposition that courts can review application questions on a correctness basis—ie that the decision-maker’s view about whether the facts ‘fit’ the legal test can be overturned if the court disagrees with it. Note the comments of Lord Goddard CJ in R v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek [1951] 2 KB 1 at 6: … if a certain state of facts has to exist before an inferior tribunal have jurisdiction, they can inquire into the facts in order to decide whether or not they have jurisdiction, but cannot give themselves jurisdiction by a wrong decision upon them; and this court may, by means of proceedings for [a quashing order], inquire into the correctness of the decision. The decision as to these facts is regarded as collateral because, though the existence of jurisdiction depends on it, it is not the main question which the tribunal have to decide. This approach was applied by the House of Lords in Khawaja v Secretary of State for the Home Department [1984] AC 74, which concerned a discretionary power to imprison and deport ‘illegal entrants’. Immigration Act 1971, there is discretion to detain or deport ‘illegal entrants’. The appellants were detained, but contended that they were not illegal entrants. * Rationality approach: The court had to decide whether the immigration officer’s decision was reasonable. * Correctness approach: was the court itself satisfied, on a balance of probabilities that the appellants were in fact illegal immigrants under the act. The court applied this standard. In Khawaja, Lord Bridge observed that in R v Secretary of State for the Home Department, ex parte Zamir [1980] AC 930, the House of Lords had Applied [the legislation in question] as if it authorised the removal of a person whom an immigration officer on reasonable grounds believes to be an illegal entrant. The all important question is whether such an implication can be justified. In other words, the question was whether judicial review should lie on a rationality or a correctness basis. Their Lordships concluded in Khawaja that the latter approach should apply. But why? On the facts, there were fundamental rights at stake, so in effect this was an application of the principle of legality.

Answer 86

Although there are, as we have seen, cases in which a correctness test has been applied, there are also cases in which a less interventionist approach—amounting a rationality test—has been adopted by reviewing courts. Consider, for example, R v Hillingdon London Borough Council, ex parte Puhlhofer [1986] AC 484, in which Lord Brightman said: What is properly to be regarded as accommodation is a question of fact to be decided by the local authority … [I]t 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 acting perversely. C entitled to accommodation if homeless. C homeless if without accommodation. Did they have ‘accommodation’? Was the decision maker’s view final (if reasonable), or subject to correctness review? Held, whether there was accommodation was a non jurisdictional question of fact, so any reasonable view would therefore be lawful. The effect of this approach is to relax the standard of review—from correctness to rationality. Analytically, this may be achieved in (at least) one of two ways: • Characterising the statutory condition as a non-jurisdictional one (Q of Fact) (Puhlhofer) o Absence of accommodation not a jurisdictional precondition o Decision on absence of accommodation therefore part of the ‘merits’ question o Hence attracts only rationality review • Characterising the statutory condition as jurisdictional but capable of diverse application. (South Yorks) o Impact on substantial part of UK a jurisdictional trigger condition o But impossible to police application question on correctness grounds because of the vagueness of the provision o Hence rationality review is all that was possible But whichever analytical technique is adopted, the upshot—rationality review of the application question—is the same. When you get to the application question with either approach, all that is possible is rationality view. They might look irreconcilable, but they come to the same conclusion – review on a rationality basis

Answer 87

The Supreme Court’s decision in R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557 (Child in need case. Claimants denied accommodation on the basis that they weren’t children but were over 18), along with other case law, provides some guidance as to when the rationality approach will apply and when the correctness standard will be applicable. Was the local authority’s view that the claimants were not children impregnable (as the local authority contended) unless unreasonable (as successfully argued at first instance and in the CA)? Or could the court intervene on correctness grounds? The ‘in need’ question: This is a question of fit, but it is an impressionistic matter, a value judgement. This should be subjected only to reasonableness review. The ‘child’ question: This is a hard-edged, objective question with a right or wrong answer. This should be reviewed on a correctness basis. Was the decision maker right? If not his decision should be displaced by the court. On issues arising from the decision in R (A) v Croydon London Borough Council, see SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284; R (MWA) v Secretary of State for the Home Department [2011] EWHC 3488 (Admin); R (B) v Nottingham City Council [2011] EWHC 2933 (Admin); R (Z) v Croydon London Borough Council [2011] EWCA Civ 59 [2011] PTSR 748. What, then, are the criteria to be used when deciding which standard of review applies in relation to application questions? Correctness or rationality? In this regard, consider the following cases: * Khawaja. Importance of the right/interest at stake. * Croydon The objectivity of the criteria: ‘child’ is more objective than ‘in need’. * South Yorkshire The clarity of the statutory language itself. Vague language will steer the court towards a reasonableness approach. * Dowty Boulton Paul Ltd v Wolverhampton Corporation (No 2) [1976] Ch 13. Does the application question require specialist knowledge or an expert judgement? If this is the case, the court shouldn’t decide on it, so reasonableness review is the highest standard they can impose. Finally, note R (CJ) v Cardiff City Council [2011] EWCA Civ 1590 [2012] PTSR 1235, in which the Court of Appeal considered what—if any—burden of proof should apply when precedent facts are in play.

Answer 88

Some factual issues have long been open to judicial review. In particular, note the following possibilities: • Factual error resulting in failure to comply with jurisdictional precondition For example, the precondition might be that the individual is an ‘illegal entrant’. If the decision maker thinks the person concerned is an illegal entrant, but they are actually a UK national then this is a factual error. The result is that the precondition isn’t actually satisfied. • Absence of admissible or relevant evidence supporting decision of a Q of fact: R v Bedwellty Justices, ex parte Williams [1997] AC 225

Answer 89

There is an argument to suggest that what Forsyth calls the ‘final frontier’ has been reached – there might now be an independent ground of JR for Material Error of Fact. Forsyth and Dring (in Forsyth et al (eds), The Final Frontier: The Emergency of Material Error of Fact as a Ground of Judicial Review in Effective Judicial Review: A Cornerstone of Good Governance (Oxford 2010) at 259-60 argue that: where a factual finding which has an impact on the outcome is objectively shown to be mistaken, the process of fair dispute resolution can be seen to have failed. The outcome is no longer rooted in factual reality, putting the decision in the same category as one which is irrational, or is based on an irrelevant consideration, or is infected by bias. A material error of fact has the same effect on a decision as a mistake about the applicable law: the decision is rendered incorrect and unfairness results to one or both parties, or to the public interest generally. This analysis provides a compelling basis for concluding that material error of fact which causes unfairness should be viewed as an error of law in the same way that irrationality, bias, or a literal misdirection on the law, are. Therefore the guiding criterion of judicial review should be whether the fair process of decision making has failed Such failures may arise where there is, for example: • A mistake of law • Irrelevant considerations • Bias • Irrationality • Factual finding which has an impact on the outcome and which is objectively shown to be mistaken.

Answer 90

* First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. * Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. * Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. * Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s [or decision maker’s] reasoning . . .

Answer 91

``` The decision in E has been treated rather gingerly by the SC in subsequent decisions. They have said that there are still non-jurisdictional questions of fact. In R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, [2005] Imm AR 535 at [29], the Court of Appeal drew together a list of examples of judicially reviewable errors of fact which Carnwath LJ had mentioned in his judgment in E. ```

Answer 92

Two further questions arise. First, In order to establish whether a mistake of fact has occurred, it will often be necessary to introduce fresh evidence. This will often be the only way to demonstrate that the situation is not quite as the decision maker thought it to be. When will a reviewing court admit such evidence? On this point, note the test (endorsed in E) which Denning LJ laid down in Ladd v Marshall [1954] 1 WLR 1489 at 1491. Fresh evidence only admissible if: * Could not have been obtained with reasonable diligence for use at the trial or hearing; * Would probably have important influence on the outcome; * Apparently credible (but not necessarily incontrovertible). Secondly, according to E, the fact in relation to which the alleged mistake has arisen must be ‘uncontentious and objectively verifiable’ (the second criteria). What does this mean? In this regard, consider the following cases: • R (Haile) v Immigration Appeal Tribunal [2001] EWCA Civ 663, [2002] INLR 283 o Confusion over the names of parties could clearly be established • R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330 o C claimed to have suffered rape, sought compensation o CICA said no medical evidence supporting the claim o However, there was such evidence. There was a police doctor’s report supporting the claim. o The existence and content of the report was uncontentious and objectively verifiable. For discussion (and some criticism) of the approach set out in E, see Richmond upon Thames London Borough Council v Kubicek [2012] EWHC 3292 (QB).

Answer 93

If a question (e.g. the meaning of a statutory term) is 'jurisdictional', then it has only one right answer; the decision-maker's jurisdiction - its power to lawfully make a decision - depends on its getting the jurisdictional right A non-jurisdictional Q, then the decision maker's answer will be lawful if it is reasonable The decision-maker's jurisdiction does not therefore depend on getting the answer right

Answer 94

Traditionally, questions of law were jurisdictional and questions of fact/application not necessarily jurisdictional The significance of Jones is that the fact/law characterisation is partly a question of expediency Where does that leave the law/fact distinction? introduces greater flexibility: escape rout from strictures of Page principle; characterisation of variable matter of relative institutional competence

Answer 95

most questions concerning the meaning of statutory terms are questions of law but some aren't (Puhlhofer) Most questions of law are jurisdictional but some are not (Page) There are 3 scenarios where some/all questions of law may be non-jurisdictional (subject to reasonableness review): (1) special system/rules i.e. Page; (2) Upper tribunal (CA) but cf SC; inferior courts: Racal but cf Cart (3) very vague statutory terms i.e. S Yorks (on one interpretation) What is the relationship between Puhlhofer and S Yorks: both concede discretion to decision-maker: Puhlhofer by manipulating the law/fact distinction/non-jurisdictional distinction

Answer 96

Before E, if the decision was based on no evidence (Bedwelty) or if it concerned a precedent fact then reviewable Under E, an error of fact can be reviewable when: (1) existing fact, (2) uncontentious (objectively verifiable) (3) no fault (4) material fresh evidence can be introduced to show error of fact when: (1) unavailable with due diligence (2) probably important effect (3) apparently credible (4) but discretion to admit in exceptional circumstances if interests of justice so require

Answer 97

Questions about whether a given set of facts satisfies a given legal criterion Sometimes Generally, if they affect fundamental rights or interests (Khawaja) or if they concern objective, hard-edged legal criteria (Croydon) Generally, if the legal criterion in play invites the making of value-judgments (Croydon), requires specialist knowledge (dowty) or is phrased in very vague terms (S Yorks - second interpretation)