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Jurisdiction and Errors of Law in Administrative Law

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About The Author

Keir Baker (Former Editor in Chief)

Keir is a Trainee Solicitor currently in the fourth and final seat of his training contract at a major US law firm. He is a law graduate from Selwyn College, University of Cambridge. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

Leave no authority existing not responsible to the people.

Thomas Jefferson

A Supreme Court decision handed down earlier this year concerning a decision made in 2012 by Secretary of State for Health, Jeremy Hunt, provides an excellent example of a judgment revolving around an important concept of administrative law: jurisdiction.

In R (Cornwall Council) v Secretary of State for Health [2015], a debate arose between three public authorities as to which was responsible for providing residential accommodation for a child with severe disabilities - known only as PH – under section 21 of the National Assistance Act 1948. The dispute, between Wiltshire, Cornwall and South Gloucestershire, hinged on the interpretation of the phrase ‘ordinary resident’ in section 24(1) of the Act; the statute held that the council of the county in which PH lived as an ‘ordinary resident’ had the responsibility.

Jeremy Hunt - acting under section 32(3) of the 1948 Act - decided that Cornwall were responsible, using the approach (known as the Vale test) stated in his own published guidance on the determination of ordinary residence, holding that PH’s ‘ordinary residence’ was that of their parents. Cornwall brought judicial review proceedings, arguing - amongst other things - that the published guidance on how to interpret the phrase ‘ordinary resident’ was legally incorrect: by making an error of law, Hunt had lost his jurisdiction.

The concept of jurisdiction is one of the most central principles of administrative law, but also one of the most technical and complex. There is an inherent uncertainty and instability here, thanks in no small part to the concept’s status as a policy question masquerading as a conceptual and analytical question. Indeed, there are different distinctions to make (questions of merit vs. questions of jurisdiction; errors of law vs. errors of fact) for which the dividing lines are not clear, as well as many different exceptions to account for.

This article will seek to try and clearly explain this intricate and often-confusing area of the law.

What Is Meant By Jurisdiction?

Domestic jurisdiction concerns the authority of administrative bodies - commonly referred to as decision-makers – to decide on a particular question. Included within this definition are Secretaries of State such as Hunt, local authorities, immigration tribunals and other regulatory bodies, and (in some cases, as will be discussed below) inferior courts of law, including - according to the decision in R (Cart) v Upper Tribunal [2011] - the Upper Tribunal.

A jurisdictional error which allows for the intervention of the process of judicial review occurs when the extent of the decision-maker’s body is misconceived. It is important for the courts to identify such as errors to prevent public authorities from acting outside their powers, potentially impacting on the rights of citizens, whether that is human rights enshrined under the European Convention of Human Rights or that of individual autonomy. It is therefore vital to prevent the abuse of power for the boundaries of jurisdiction to be clearly defined, and breaches to be quickly quashed.

Such misconceptions as to the extent of a decision-maker’s jurisdiction can occur in two main forms: an error of law, such as in Cornwall Council, and an error of fact.

An error in fact occurs when a decision-maker wrongly gives itself the jurisdiction to act or make a decision by erroneously proceeding on the assumption of the existence of a fact which must exist objectively before the tribunal has to power to act. An error in law occurs when a decision-maker wrongly gives itself the jurisdiction to act or to make a decision by misconstruing relevant statutory provisions or the common law that would be material to such an act or decision.

Merits Questions vs. Jurisdictional Questions

This is a fundamental distinction because it determines who will have the final say - either the reviewing court or the decision-maker. It revolves heavily around the notion of the existence of the right answer which the courts are able to impose.

Concisely expressed using the context relevant to this article, a jurisdictional question takes the form: ‘did Jeremy Hunt (the decision-maker) have the power to make the decision that he did (exercise his authority)?’ It is a question that is ultimately for the reviewing court to decide and the court has the final word over what constitutes the right answer; the question whether a decision-maker’s power may be validly exercised is a ‘yes or no’ answer. The reviewing court’s decision can also be characterised as substitutionary, in the sense that its answer will override that of the decision-maker.

In contrast, a merits question takes the form of ‘should Jeremy Hunt have made such an assertion?’ It is a multi-faceted question that takes into account many variables, leaving the decision-maker rather than the courts with the relative institutional competence to examine it. It lacks a definitive ‘yes or no’ answer and thus, the power to ultimately decide is left to the decision-maker; the courts are typically reluctant to intervene unless permission to do so is given by statute, or there has been a severe breach of human rights.

A helpful example of the distinction between jurisdictional and merits questions is offered by Beatson, Matthews and Elliot is where a statute gives a Secretary of State to detain ‘dangerous illegal entrants.’ The question as to whether an entrant is ‘illegal’ can be answered by the courts by reference to the relevant statute. It is, therefore, a jurisdictional question; easy to review the Secretary of State’s decision for it is a ‘yes or no’ answer.

However, the question as to whether that individual is ‘dangerous’ is one that invites no simple answers and can only really be impressionistically answered, making it more difficult for the courts to review. It is thus a merits question.

Errors of Law: The General Principle and its Exceptions

Initially in English administrative law, there was one jurisdictional hurdle which, once negotiated, left all jurisdictional issues dealt with: doctrine held that jurisdiction could not be lost once it was secured. Known as the ‘original jurisdiction fallacy’, it was later overruled by the celebrated case of Anisminic v Foreign Compensation Commission [1969], where it was held that throughout the course of the various processes that must be undertaken to answer a merits question - such as examining legitimate expectations, taking into account relevant information, and ensuring that all the views of relevant parties are fairly heard - certain conduct can ‘take back’ and vitiate the decision-maker’s original jurisdiction.

Before the decision is Anisminic, there was a generally-applicable distinction between jurisdictional and non-jurisdictional question of law. Put best by Denning LJ in R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952], it was well-accepted that “a tribunal may often decide a point of law wrongly whilst keeping well within its jurisdiction.” However, this was a complex position that faced problems of inconsistency and instability, issues further compounded by the notion of non-jurisdictional but nonetheless reviewable ‘errors on the face of the record’.

Today’s new orthodoxy emerged as a result. Followed in Cornwall Council, it creates a presumption that all errors of law are jurisdiction questions - and are therefore judicially-reviewable – unless certain exceptions apply.

The origin of this new orthodoxy is uncertain: it is sometimes erroneously said that it stemmed from Anisminic. However, cases following Anisminic show judicial confusion about the conclusions that could be drawn from the precedent, as exemplified by the three-way split between the judges in Pearlman v Keepers and Governors of Harrow School [1979], with all three unable to agree on the impact of Anisminic on this area of the law. Indeed, it was not until the case of R v Lord President of the Privy Council, ex parte Page [1992] that any degree of clarity and conclusiveness was introduced. In this case, Lord Browne-Wilkinson explained that “the decision in Anisminic rendered obsolete the distinction between errors of law on the face of the record and other errors of law”, affirming the existence of today’s presumption-creating orthodoxy and its exceptions.

Exception 1: The Nature of the Rules

In Page, in which the reviewing court decided itself unable to judicially review the validity of a decision under the ‘Statutes of the University of Hull’, Lord Browne-Wilkinson stated that the:

[I]nability of the court to intervene [was] 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.

Here, his Lordship articulated the first exception to the orthodox presumption – an error of law is not a jurisdictional question if the ‘law’ concerned is alien in nature. If the decision-maker has the power under the alien system of law to act or make a decision, it cannot make an error in law because the law in question is not the law of England and Wales. Therefore a reviewing court has no jurisdiction either to say that the decision-maker erred in its application of the general law or to reach a contrary view as to the effect of the alien system of law (since the decision-maker is the sole judge of such peculiar law).

But this seems artificial; in practice, most peculiar legal systems – such as the charter and statutes of a university – are nonetheless expressed in ordinary legal language and applied in accordance with the same principles as those applicable under the general law. Furthermore, the important public roles of many of the decision-makers to which these alien legal system apply means that it seems wrong that they should be immune from the general law of the land – as Scrutton LJ stated in Czarnikow v Roth, Schmidt and Co. [1922], ‘there must be no Alsatia in England where the King's writ does not run.’

Exception 2: The Nature of the Decision-Making Body

The second exception to the orthodox presumption that all errors of law are jurisdictional concerns decision-makers which constitute courts - commonly referred to as inferior courts - or certain decision-makers which have court-like characteristics. In essence, it suggests that an error of law by an inferior court may still give rise to an argument whether it is jurisdictional or not subject to the wording of the statute which gave it its jurisdiction. Where the relevant Act provided that the court’s decision should be final and conclusive, the subtle distinctions formerly drawn by the courts before Anisminic might still operate so that some errors of law might still remain reviewable.

This was the view adopted by the House of Lords in Page, where Lord Browne-Wilkinson approved dicta from Lord Diplock, who in Re: Racal Communications Ltd [1981] stated obiter:

Whether [Parliament intended to allow an inferior court conclusively to determine questions of law] … depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic

This exception is based on the questionable assumption that inferior courts have legal expertise but that other decision-makers do not.

Furthermore, there has been a particular debate over the jurisdictional status of the Upper Tribunal, which was examined by both the Court of Appeal, and then the Supreme Court in the case of R (Cart) v Upper Tribunal [2011].

Section 3(5) of the Tribunals, Courts and Enforcement Act 2007 holds that the Upper Tribunal is a ‘superior court of record’. Therefore, many commentators, such as Sir Andrew Leggatt, assumed that the Upper Tribunal would be immune from judicial review, and any errors of law that it made would be non-jurisdictional.

In the Court of Appeal decision in R (Cart) v Upper Tribunal [2009], Sedley LJ adopted a more subtle approach that was based on the analysis of the extent of the Upper Tribunal’s jurisdiction. It stems from the belief that there is a difference between an error of law made in the course of a lawful adjudication and the conducting of an unlawful one. As Sedley LJ explained:

[T]rue of errors of law within jurisdiction... reside within the principle that a system of law, while it can guarantee to be fair, cannot guarantee to be infallible [but] outright excess of jurisdiction by the Upper Tribunal and denial by it of fundamental justice... are in a different class: they represent the doing by the Upper Tribunal of something that Parliament cannot possibly have authorised it to do.

However, the Supreme Court took a different approach in R (Cart) v Upper Tribunal [2011], recognising that this approach could reintroduce precisely the complications which Anisminic removed. Instead, it was held that the second-tier appeals criteria should apply; judicial review of the Upper Tribunal should only occur if the case raised some important point of principle or practice or if there is some other compelling reason for judicial review. This approach is preferable for, as Lady Hale articulated, it 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 [because] 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.

Exception 3: Nature of the Statutory Provision Concerned

The final exception to the orthodox presumption that all errors of law are jurisdictional revolves around statutory provisions with no clearly discernible meaning. In R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993], the court answered the question as to whether a reasonable interpretation by a decision-maker of a vague statutory provision was acceptable in the affirmative.

After examining the decision-maker’s interpretation of the phrase ‘substantial part of the United Kingdom’ within section 64(3) of the Fair Trading Act 1973, Lord Mustill explained that:

[T]he courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision....A clear-cut approach cannot be applied to every case, for the criterion so established 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. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational.

The basis of this exception is that it would be inappropriate for a reviewing court to add judicial gloss to ordinary words and terms, the interpretation of which Parliament has entrusted to the decision-maker. This makes sense, for these cases often involve policy issues of political controversy on which, as Justice Singh described in R (Child Poverty Action Group) v Secretary of State for Work and Pensions, Secretary of State for Education [2012]: ‘many people take diametrically opposed views. That is the very stuff of democratic debate. It is not for the courts to intrude upon that democratic process’.


The complexity of this area of the law is evident from the above discussion, which - for the sake of length and clarity - has omitted to discuss errors in fact in detail or recent judicial manipulation of the error of law and error of fact distinction in cases such as Jones v First-Tier Tribunal [2013].

Whilst the orthodox presumption that all errors of law are jurisdictional is an improvement from the pre-Anisminic law, some of the exceptions to the orthodox presumption seem to be rooted in artificiality. In this area of the law, the judiciary needs to take advantage of fact patterns such as Cornwall Council to develop and fully explore the doctrines they are applying.

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Tagged: Administrative Law, Judicial Review, Public Law

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