Jruisdiction, Error of Law/Fact, Ouster of Judicial Review

What are questions of jurisdiction concerned with?

Whether a public authority had the power to make a decision as defined by statute.

What is the role of courts when deciding questions of jurisdiction? (2)

• Courts do not take over the decision-making process or decide substantive issues.

• Jurisdiction is separate from relevancy, purpose, or Wednesbury unreasonableness review.

Error of Fact: What precedent fact did the court identify in Khawaja, and why does it matter? (2)

• Whether a person is an 'alien' is a precedent fact to be determined by the Court, even though the Home Secretary decides whether to deport.

• Court is stricter where decisions restrict or remove a subject's liberty.

What is the effect of a decision outside jurisdiction?

It is null and void (ultra vires).

What is the effect of a decision within jurisdiction?

Can still be challenged on other judicial review grounds.

What is the general approach of courts to questions of fact? (2)

• It is the duty of the court to leave questions of fact to the public body Parliament has entrusted with decision-making power.

• Except where the body is obviously acting perversely, whether consciously or unconsciously.

Error of Law: Which case confirmed that Anisminic made the jurisdictional/non-jurisdictional distinction obsolete?

Ex parte Page — established that every error of law goes to jurisdiction.

What is the aim of judicial review?

To uphold the rule of law by adjudicating when courts are more likely to be correct than the administration on fact or law.

What was the traditional distinction between jurisdictional and non-jurisdictional errors?

Courts could substitute decisions for jurisdictional errors but not for non-jurisdictional ones.

What are non-jurisdictional errors?

Errors within discretionary powers limits set by courts.

What is the modern position on errors of law?

All errors of law go to jurisdiction.

Error of Fact: What is the general approach to errors of fact?

Courts leave factual questions to public bodies unless they act perversely. —Hillingdon LBC, ex parte Puhlhofer

Error of Fact: What did Carnwath LJ establish regarding mistakes of fact?

A mistake of fact resulting from the failure to consider evidentiary findings can be considered a “separate ground of review, based on the principle of fairness” — E v Home Secretary

Error of Fact: What are the 4 factors establishing ‘ordinary requirements for a finding of unfairness’ due to a mistake of fact?

R v Criminal Injuries Compensation Board ex p A

1. Mistake must be as to an existing relevant fact, including the availability of evidence.

2. Fact/evidence must be uncontentious and objectively verifiable.

3. Appellant not responsible for the mistake.

4. Mistake had a material (not necessarily decisive) part in the tribunal’s reasoning.

Error of Fact: What key notes apply to E v Home Secretary? (4)

• It was an appeal, but same approach applies in both contexts.

• Allows deference under requirement (2) that the fact in an error of fact must be unconscious and verifiable.

• Avoids jurisdictional divide.

• Could make all material factual errors reviewable.

Error of Fact: What is a precedent fact?

A fact determining jurisdiction that courts can decide independently.

Error of Fact: What distinction did R(A) v Croydon LBC introduce?

1. Evaluative facts ⇒ deferential review

2. Objective facts ⇒ court determines correctness

Error of Fact: How were the facts classified in Croydon? (2)

• “Child in need” = evaluative

• “Is a child” = jurisdictional — objective

Error of Fact: Give 2 criticisms of Croydon

1. Parliamentary intention does not support the distinction. → Both are statutory conditions to be made out.

2. Objectivity argument is questionable because both types could be argued to be jurisdictional facts determining the outer bounds of statute.

Error of Fact: How did Bubb v Wandsworth retreat from Croydon? (2)

1. Decision in Croydon was based on the specific statute. → Allocation of functions is determined by what the particular statute provides — depends on statutory interpretation.

2. Hard fact vs value judgment distinction is not as clear-cut as it appears — each can involve the other.

Error of Fact: When might courts take a stricter approach to facts?

When decisions restrict or remove a subject’s liberty — Khawaja

Error of Law: What are the facts and decision of Anisminic? (3)

• Facts = Foreign Compensation Commission interpreted legislation about distributing compensation from Egypt for nationalised British properties. → Legislation contained an ouster clause saying determinations “shall not be called in question in any court of law”. Concerned compensation for nationalised property.

• Legislation contained an ouster clause saying determinations “shall not be called in question in any court of law”.

• HELD = HOL held that any error of law rendered the decision a nullity and thus reviewable. → Errors of law render decisions null, bypassing the clause.

Error of Law: How are inferior courts treated regarding errors of law? (2)

Hull University Visitor ex p Page

• Errors may still be jurisdictional or non-jurisdictional.

• Non-jurisdictional errors are immune.

When will courts defer under vague statutory terms?

When multiple rational interpretations exist.

What was the issue and decision in South Yorkshire Transport? (3)

• Issue = MMC concluded that “a substantial part of the UK” under s64(3) Fair Trading Act 1973 included a region covering 1.65% of the country.

• HELD = HOL upheld this as within permissible field judgment. → Declined to give a precise meaning to the phrase, as doing so could cause future anomalies and fetter the powers of the Secretary of State and MMC.

• Courts will not intervene unless the interpretation is irrational.

What did Susan Black note about South Yorkshire Transport? (3)

• No precise definition given.

• Avoids anomalies.

• Preserves administrative discretion.

When will courts substitute their own decision?

When the decision lacks evidence or is unreasonable — Edwards v Bairstow

What are the facts and decision in Edwards v Bairstow? (2)

• Facts = Tax commissioners found no trade activity — buying and selling of a spinning part was not “an adventure or concern in the nature of trade”.

• HELD = Court set this aside because the commissioners acted without any evidence or on a view of the acts that could not reasonably be entertained.

What was the Chevron doctrine (US)?

Courts defer to agency’s interpretations of ambiguous statutes, as long as the interpretation was reasonable.

What replaced Chevron?

Loper Bright Enterprises v Raimondo (2024) — Held that courts should no longer defer to the Executive on agency rule-making.

Exceptions to Anisminic: What did Cart decide about Upper Tribunal decisions?

Judicial review applies but under restricted criteria.

Exceptions to Anisminic: What are the Second Tier Appeals criteria? (2)

1. Important point of principle/practice

2. Other compelling reason

What are the facts and decision in Cart? (2)

1. Refusal of permission to appeal challenged.

2. HELD = SC rejected both full review and pre-Anisminic standard. → Adopted limited review via appeal criteria.

Why was unrestricted review rejected in Cart?

Would overwhelm courts.

What replaced Cart appeals?

Abolished by the Judicial Review and Courts Act (ouster clause).

Exceptions to Anisminic: What is the significance of the Cart ouster clause?

• Makes decisions final.

• May still be challenged via Anisminic reasoning.

Exceptions to Anisminic: What did Lord Hoffmann say in Moyna?

When a tribunal applies a standard with imprecision and must consider multiple factors, there will inevitably be cases where a reviewing court cannot say the tribunal must have erred in law either way.

Does Anisminic apply where a body is not applying general law of the land?

When the body is applying only the domestic law of an organisation, not the general law of the land. — Page

What are the facts and decision in Page? (4)

1. Facts = Page, a lecturer dismissed by the University of Hull, sought review of the visitor’s dismissal decision.

2. HELD = Court held the Anisminic rule (all errors of law are ultra vires) did not extend to visitors interpreting university statutes.

3. Visitor is the sole judge of domestic law. → Common law not applicable. → University visitor’s decision final.

4. The Court noted advantages of an informal system producing quick, cheap, and final answers.

What justification was given for Page? (2)

• Informal, quick, cheap dispute resolution.

• Long-standing recognition of finality.

Who dissented in Page and why?

Lord Slynn and Lord Mustill argued that the office of visitor does not warrant such exceptional treatment.

Law vs Fact: What did Edwards v Bairstow establish about errors of law and errors of fact? (2)

• Although the court can only overturn a decision for an error of law, it is possible to infer an error of law from an error of fact.

• Where all found facts point one way and the inference goes the other, this may indicate either a wrong inference of fact (due to misdirection in law) or a wrong inference of law.

Law vs Fact: What did Viscount Simonds state?

Wrong factual inference may reflect legal misdirection or be treated as legal error.

Law vs Fact: What did South Yorkshire Transport say about interpretation?

Courts should favour interpretations allowing administrative jurisdiction in the public interest.

What was the issue in Jones v FTT?

Whether absence of mens rea was an error of law

What are the facts and decision in Jones v FTT? First the CA then the SC (3)

• Facts = FTT found no mens rea based on agreed facts concerning X’s suicide attempt, denying compensation under the Criminal Injuries Compensation Scheme 2001.

• CA said error of law.

• SC disagreed and reversed this → no error of law.

What did Lord Carnwath state in Jones?

Questions may be factual even when applying legal categories.

What did Lord Hope say in Jones about the approach to the law/fact divide? (2)

• Pragmatic approach should be taken so that expertise of tribunals can be used to best effect.

• Also gave interpretive leeway because issues concerning crimes of violence would often be factual, while other offences might admit only one legal answer.

What did Lord Carnwath add about law/fact division in Jones?

Influenced by expediency and policy.

What 2 things did Craig note about Jones?

1. Lord Hope allowed interpretive leeway.

2. Lord Carnwath emphasised tribunal competence.

What is the effect of Jones?

Grants tribunals greater discretionary power.

What did Lord Hoffmann say about fact vs law classification in Jones?

Some “questions of fact” are really policy-based limits on appellate review.

Ouster Clauses: What is an ouster clause?

A statutory provision attempting to exclude the High Court’s function of reviewing decisions by public bodies (aka excluding judicial review).

Ouster Clauses: What is the courts’ approach to ouster clauses?

Highly hostile.

Ouster Clauses: How did Anisminic treat ouster clauses?

It did not apply to ultra vires (null) decisions.

Ouster Clauses: How was ouster addressed in Cart?

No clear wording to exclude judicial review → Review allowed

Ouster Clauses: What did Privacy International decide?

Even explicit ouster clauses do not exclude review of ultra vires decisions.

Ouster Clauses: What happened in Privacy International regarding a seemingly explicit ouster clause? (3)

• The ouster clause explicitly included 'decisions as to whether they have jurisdiction' as not to be reviewed.

• Despite this, SC held the Anisminic principle still applied. → Decisions that are ultra vires are not decisions at all and are therefore subject to review.

• Even explicit ouster clauses do not exclude review of ultra vires decisions.

Ouster Clauses: What wording was used in Privacy International?

Included decisions “including jurisdiction” as non-reviewable, but still rejected.

Ouster Clauses: What is the constitutional implication of hostility to ouster clauses?

Reinforces the rule of law and judicial oversight.

Ouster Clauses: What statute responds to this hostility?

Dissolution and Calling of Parliament Act 2022 (non-justiciability clause)

Ouster Clauses: What happened to 'Cart appeals' under the Judicial Review and Courts Act? (3)

• s2(1)(2) Judicial Review and Courts Act introduced an ouster clause making Upper Tribunal decisions on permissions to appeal 'final and not liable to be questioned or set aside in any other court'.

• This was justified by the low success rate of Cart appeals.

• HOWEVER, this clause may be circumvented on Anisminic reasoning that a legally wrong decision is no decision at all.

What does s3 Dissolution and Calling of Parliament Act 2022 introduce and why is it notable? (2)

• Appears to introduce a non-justiciability clause for prorogation decisions.

• Notable as potentially being a legislative reaction to judicial hostility towards ouster clauses.

What per curiam comment in South Yorkshire Transport addressed the law/fact distinction and public interest?

Where the task is to interpret an enabling provision designed to confer power to investigate mergers against the public interest…

⇒

Court should lean against an interpretation giving the commission jurisdiction only in a small minority of cases.

What did Lord Hoffmann say in Moyna about the law/fact distinction? (3)

1. Seems odd to call something a question of fact when there is no factual dispute and the issue is whether facts fall within a legal category.

2. In effect, 2 kinds: genuine questions of fact, and questions of law which lawyers have decided it is inexpedient for an appellate tribunal to determine independently.

3. Degree to which an appellate court substitutes its own judgment varies with the nature of the question.

Why did the Supreme Court in Cart reject both extremes of review? (2)

• Applying the pre-Anisminic standard would prohibit review of serious legal questions.

• Reviewing all errors of law would overwhelm the courts with applications.

What was the old distinction between jurisdictional and non-jurisdictional errors? (3)

• Jurisdictional errors = those the court could substitute its own decision on.

• Non-jurisdictional errors = within limits of decision-maker's discretionary power and courts could not substitute their decision.

• This distinction is now obsolete.

What did Lord Carnwath say in Jones about questions of law treated as questions of fact? (2)

• Something can be a question of fact even when there is no dispute over the facts and the question is whether they fall within a legal category.

• Where it would be “inexpedient for an appellate tribunal to have to form an independent judgment”.

What did Lord Carnwath say in Jones about the role of policy and expediency in the law/fact divide? (2)

• Law/fact division in classification cases is not purely objective, but must take account of factors of 'expediency' and 'policy'.

• Jones thereby granted lower tribunals greater discretionary power.

How did the Supreme Court in Croydon split questions of fact? (2)

1. Evaluative facts — left to the administrative body subject to deferential review.

2. Objective facts — which have a right or wrong answer the court can determine.

What were the facts of Cart and the question before the Supreme Court? (2)

• Facts = Applicant sought permission to appeal to the Upper Tribunal, was refused, and then sought judicial review of that refusal.

• Divisional Court and CA applied the pre-Anisminic standard (error of law outside jurisdiction only).

• SC had to determine the correct standard.

How was the osuter argument dealt with in Cart? (2)

• 2007 Act had excluded Upper Tribunal decisions from appeal to CA but not from judicial review by High Court.

• SC rejected govt’s argument that judicial review was excluded by implication → Clear parliamentary words are required to oust judicial review.

Are errors of law by inferior courts treated the same way as errors by tribunals and other authorities? (2)

• NO → Inferior courts must be distinguished from tribunals and other authorities.

• Error of law by an inferior court may still raise the question of whether it is jurisdictional — if not jurisdictional, it is immune from review.

What happens where legislation is too vague to permit a definitive legal interpretation?

Court will not substitute its own decision unless the interpretation chosen by the administrative body is so aberrant it cannot be classed as rational.

What was the central holding of Anisminic? (2)

• All errors of law are jurisdictional. → They render a decision ultra vires and null.

• There are therefore no errors of law outside the scope of judicial review.

What did the Supreme Court hold in Cart? (3)

1. Nothing in the Act excluded judicial review of non-appealable decisions. → Parliament must use explicit words to allow the Upper Tribunal to make errors of law.

2. Neither the pre-Anisminic standard nor unrestricted review of all errors was appropriate.

3. Correct approach was to apply the Second Tier Appeals Criteria.

How did the court in Anisminic deal with the ouster clause in s4(4) Foreign Compensation Act 1950? (2)

• Clause stated determinations “shall not be called in question in any court of law”.

• Court held it was not ousted where there was “merely a purported determination given in excess of jurisdiction”' — i.e. an ultra vires decision is no decision at all and so the ouster clause does not apply.

What is the overarching aim of judicial review?

To uphold the rule of law — court adjudicates when it is more likely to be right than the administration about relevant issues of fact or law.