Jurisdictional Error and Administrative Law Values

Here is a long post on the relevance of administrative law values (see my articles, here and here) to the difficult issue of jurisdictional error in English administrative law. Comments welcome!

A useful starting point for a discussion of jurisdictional error is the following proposition: “any grant of jurisdiction will necessarily include limits to the jurisdiction granted, and any grant of a power remains subject to conditions”.[1] When the legislature grants authority to an administrative decision-maker, the authority will perforce be limited;[2] the decision-maker must act within the jurisdiction it has been granted:

[Jurisdictional facts] were to be distinguished from facts on which findings were conclusive only by the legislature’s having marked them out as condition-forming facts; that is statutory language must show that these facts had actually to exist before the tribunal whose powers were being defined could have conditional jurisdiction.[3]

The link to the value of democracy is quite clear. What legitimises the proposition that jurisdiction is limited is that the legislature has set the limits out in statute. When the courts decide “whether or not the fact exists”,[4] they are merely giving effect to the wishes of the legislature as set out in statute. Indeed, it is imperative that they police the boundaries of jurisdiction, for a decision-maker “cannot, by a wrong decision with regard to [a jurisdictional fact], give itself jurisdiction which it would not otherwise possess”.[5] Thus in R v London Rent Tribunal, ex parte Honig, Lord Goddard CJ felt obliged to determine whether a contract existed between a landlord and a tenant in order to ensure that the Tribunal could indeed exercise its power to reduce the tenant’s rent “because it was only if there was a contract that they could exercise the jurisdiction which the Act of Parliament has given them”.[6]

In many jurisdictions it is now also accepted that where an administrative decision-maker commits an error of law by interpreting the law incorrectly, a reviewing court may intervene. Anisminic v Foreign Compensation Commission^[7] was a watershed case. A majority of the House of Lords held that an error in interpreting an Order in Council justified judicial intervention, even in the face of a privative clause.^[8] Concern for democracy was paramount. As Lord Pearce put it, administrative decision-makers must “confine themselves within the powers specially committed to them on a true construction of the relevant Acts of Parliament”.^[9] When courts intervene to keep an administrative decision-maker within boundaries established by legislation, this represents “simply an enforcement of Parliament’s mandate to the tribunal”.^[10] That the “very effectiveness” of statute should be ensured by judicial review^[11] is underpinned by rule-of-law concerns: “By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law”.^[12]

A statute might, however, grant significant decisional authority to an administrative decision-maker, which a court paying due respect to the value of democracy would be obliged to take into account:

The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more….[In such a case] it is an erroneous application of the [jurisdictional error] formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends…[13]

Notwithstanding the conventional view that Anisminic “removed the distinction between error of law and excess of jurisdiction”,[14] their Lordships were well aware of the nuances created by the value of democracy.  For Lord Wilberforce, for instance, while the “essential point” is that a tribunal exercises “derived authority” and is thus subject to limitations set out by the legislature in statute, “[t]here is always an area, narrow or wide, which is the tribunal’s area”.[15]

Indeed, it is possible to build a deferential approach to judicial review of administrative action on these foundations. In those jurisdictions where deference to administrative decision-makers is embraced, the courts recognize the importance of respecting the “tribunal’s area”: “Courts, while exercising their constitutional functions of judicial review, must be sensitive…to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures”.^[16] Statutes are treated as relevant information which carve out a space for administrative decision-makers^[17] or which inform the degree of deference courts ought to accord to administrative decision-makers.^[18] Democracy – the legislative choice to grant authority to administrative decision-makers – is thereby respected. The authority thereby granted is not absolute, however.^[19] The courts still police the limits of powers granted by legislatures, but they do so mindful of the need to respect the authority of administrative decision-makers. As Lord Wilberforce acknowledged in Anisminic, determining the “extent of the interpretatory power conferred upon the tribunal” should not be done with “any necessary predisposition towards one that questions of law, or questions of construction, are necessarily for the courts”.^[20] Ultimately, “when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, [it] strives to determine what authority was intended to be given to the body in relation to the subject-matter”.[21]

A deferential approach can be buttressed by good administration considerations. Moreover, to defer to administrative decision-makers is to defer to expert bodies which can deal efficiently with complex issues, sometimes relying on input from interested parties. Such bodies can exercise their functions with “cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject”.^[22] Both good administration and separation-of-powers concerns were expressed by the Supreme Court of the United States in its seminal Chevron decision:

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.^[23]

It is true that, in England, there is significant judicial resistance to such ideas. It has recently been said, for instance, that a decision-maker’s “expertise and the specialised nature of its functions do not clothe it with any wider power to determine its statutory jurisdiction than is enjoyed by other administrative decision-makers, and its conclusions on [legal questions] are entitled to no greater deference on a review or appeal”.[24] Nonetheless, the picture is not quite as straightforward as the standard statement – all jurisdictional errors are reviewable – portrays. A proper understanding of jurisdictional error in English administrative law can only be achieved by consideration of administrative law values.

To begin with, there are limited exceptions to the proposition that all errors of law are reviewable. In R v Hull University Visitor, ex parte Page, the Visitor was required to make determinations about a “peculiar, domestic law”[25] and, in doing so, was not subject to judicial review for error of law. Lord Browne-Wilkinson’s reasons for so concluding sound in administrative law values. Good administration was relevant: a visitor applies “not the general law of the land but a peculiar, domestic law of which he is the sole arbiter and of which the courts have no cognisance”[26] and so has an edge on the courts in terms of relative expertise; moreover, the visitorial jurisdiction is “an informal system which produces a speedy, cheap and final answer to internal disputes…”[27] Separation of powers was also operative: the ordinary “constitutional basis”[28] of judicial review for error of law was absent because the “special status of a visitor springs from the common law recognising the right of the founder [of a private organisation] to lay down such a special law subject to adjudication only by a special judge, the visitor”.[29] Here, the appropriate role of the courts was more restricted that in it is in the case of review of administrative decision-makers.[30]

Inferior courts may also have a special status as far as review for error of law is concerned. In an expansive discussion of the modern doctrine of jurisdictional error in Re Racal Communications, Lord Diplock praised what he saw as the advances made in Anisminic but warned his colleagues “not [to] be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide”.[31] The best explanation for this warning sounds in good administration: the expertise of inferior courts on questions of law is likely to approach that of the superior courts. Similarly, in the litigation concerning the scope of review of decisions of the Upper Tribunal, created by the Tribunals, Courts and Enforcement Act 2007, there was a generalised judicial reluctance to mandate plenary review of the Tribunal’s interpretations of law,[32] because, variously, of the Tribunal’s evident expertise (a good administration rationale) and Parliament’s desire to create a unified, judicialised dispute resolution mechanism (a democracy rationale).

It is also worth considering the decision of the House of Lords in R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport,[33] for it illustrates the need for nuance when considering the value of democracy. At issue was the interpretation of s. 64 of the Fair Trading Act 1973. A deal involving the acquisition by a bus company of local bus services in South Yorkshire, Derbyshire and Nottinghamshire was referred to the Commission for a determination as to whether the merger concerned a “substantial part of the United Kingdom”. On investigating the merger, the Commission concluded that although the area in question represented a tiny percentage of the geographical territory of the United Kingdom, it was sufficiently economically and culturally significant to count as “substantial” for the purposes of the 1973 Act. Its recommendation that the purchaser divest itself of the companies it had acquired was challenged in judicial review proceedings. In the House of Lords, Lord Mustill noted that the term “substantial part” is “protean” and “accommodates a wide range of meanings”.[34] Indeed, the term was “so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case”, such that the court was “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”.[35] Here, “[e]ven after eliminating inappropriate senses of ‘substantial’ one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement” and the Commission’s conclusion was “well within the permissible field of judgment”.[36] Where a term “does have a correct meaning and one meaning alone”, a court will insist upon it, but that was not the case here.[37] Proper attention to statutory language, in other words, opened up a discretionary range of judgment within which the Commission could roam. The conclusion also makes sense from a good administration perspective – the Commission is plainly better equipped than a court to determine the economic effects of the absorption by a larger company of smaller operators; judicial interference on economic matters might, indeed, impede the efficient and effective regulation of competition by the Commission.[38]

By contrast, the decision in R (A) v Croydon London Borough Council[39] indicates that in situations where the statutory language is clear and the courts are not at a disadvantage relative to administrative decision-makers in terms of expertise, judges will patrol jurisdictional boundaries more vigilantly. Section 20 of the Children Act 1989 imposes a duty on local authorities to provide accommodation, in defined circumstances, to “any child in need within their area”. Lady Hale rejected the argument that the local authority’s determination as to whether a person is a “child in need” was not jurisdictional, drawing a distinction between the question of “need”, which would require “a number of different value judgments” to which “there are no clear cut right or wrong answers”,[40] and the question of whether a person is a “child”, where “[t]here is a right or a wrong answer” and which is of a type of question that “regularly come[s] before the courts”.[41] Democracy and good administration can again be seen to be operative: once more, there is a focus on the statutory language (which is much tighter here than in South Yorkshire Transport) and the relative institutional competence of courts and decision-makers (which is comparable here, such that close judicial control is unlikely to frustrate the attainment of statutory objectives).

Another pair of cases illustrates the importance of rule of law and good administration considerations in determining the intensity of judicial review for alleged jurisdictional error. In Khawaja v Home Secretary[42] the House of Lords had to consider the definition of “illegal entrant” in s. 33 of the Immigration Act 1971, for under this provision two immigrants who had been living in the United Kingdom had been detained, on the basis that they had not previously disclosed material facts to immigration officials. The case involved “grave issues of personal liberty”,[43] so much so that their Lordships were persuaded to depart from one of their own recent decisions. In R v Home Secretary, ex parte Zamir,[44] it had been held that the determination as to whether an immigrant was an “illegal entrant” or not was not jurisdictional. This created a “a draconian power of arrest and expulsion based upon [the immigration officer’s] own decision of fact which, if there was any evidence to support it, cannot be examined by any judicial process until after it has been acted on…”.[45] For his part, Lord Scarman was “convinced that the Zamir reasoning gave insufficient weight to the important – I would say fundamental – consideration that we are here concerned with, the scope of judicial review of a power which inevitably infringes the liberty of those subjected to it”.[46] In other words, rule of law concerns were paramount, such that any individual subject to removal proceedings could challenge his or her classification as an “illegal entrant” before the courts.

Consider by contrast R v Hillingdon London Borough Council, ex parte Puhlhofer,[47] where the relevant statutory term was open-textured and its implementation raised good administration concerns. At issue was individuals’ entitlement to accommodation under the Housing (Homeless Persons) Act 1977, an entitlement that would not arise if they already had “accommodation”. The House of Lords concluded that whether one was in “accommodation” was a question of fact, but that a local authority’s conclusion on the matter was not subject to intrusive judicial oversight:

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.[48]

It was thus significant not only that Parliament had entrusted local authorities with the making of accommodation decisions, but that Parliament had employed a term – “accommodation” – that has a “broad spectrum” of meaning; proper attention to the value of democracy required the court to give significant breadth to local authorities. Moreover, Lord Brightman expressed concern about the “prolific” use of court proceedings to enforce the 1977 Act and, in view of the difficult balancing act that local authorities had to perform in providing accommodation, urging “great restraint” in giving leave to bring judicial review applications.[49] The concern here appears to be for the efficient and effective operation of the legislation by local authorities – a good administration consideration.

I suggest, in conclusion, that these leading English cases on substantive review demonstrate the importance of administrative law values in determining the intensity of judicial scrutiny of alleged jurisdictional errors.

[1] Union des employés de service, local 298 v Bibeault [1988] 2 SCR 1048 at 1086, per Beetz J.

[2] “It is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure”: R v Shoreditch Assessment Committee, ex parte Morgan [1910] 2 KB 859 at 880, per Farwell LJ.

[3] DM Gordon, ‘Conditional or Contingent Jurisdiction of Tribunals’ (1959-1963) 1 UBCLR 185, 197. Emphasis added.

[4] Peter Hogg, ‘The Jurisdictional Fact Doctrine in the Supreme Court of Canada: Bell v Ontario Human Rights Commission’ (1971) 9 Osgoode Hall LJ 203, 210.

[5] R v Lincolnshire Justices, Ex parte Brett [1926] 2 KB 192, at p. 201, per Atkin LJ, citing Halsbury’s Laws of England.

[6] [1951] 1 KB 641, at p. 646.

[7] [1969] 2 A.C. 147.

[8] It is now widely accepted that the logic of Anisminic means that errors of law will generally justify judicial intervention. See e.g. In re A Company, [1981] A.C. 374, at p. 383, per Lord Diplock: “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”; R. v Hull University Visitor, ex parte Page, [1993] A.C. 682, at p. 701, per Lord Browne-Wilkinson: “In my judgment the decision in [Anisminic] rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires”.

[9] [1969] 2 A.C. 147, at p. 194.

[10] [1969] 2 A.C. 147, at p. 196. See similarly R. v Northumberland Compensation Appeal Tribunal, Ex parte Shaw, [1952] 1 K.B. 338, at p. 346.

[11] R. (Cart) v Upper Tribunal, [2009] EWHC 3052, [2010] 1 All E.R. 908, at para. 38, per Laws L.J.

[12] Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 29.

[13] R v Income Tax Special Commissioners, ex parte Cape Copper Mining Company (1888) 21 QBD 313, at pp. 319-320, per Lord Esher MR. See e.g. Tithe Redemption Commission v Wynne [1943] KB 756.

[14] R. (Cart) v Upper Tribunal, [2011] UKSC 28, [2012] 1 A.C. 663, at para. 18, per Baroness Hale of Richmond.

[15] 1969] 2 A.C. 147, at p. 207.

[16] Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 27. Emphasis added.

[17] It may be said, for example, that clear statutory language must be enforced because “the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress”. Chevron v Natural Resources Defense Council, 467 U.S. 837 (1984), at pp. 842-843. Within these boundaries, but only within these boundaries, the administrative decision-maker is free to choose between competing interpretations.

[18] Peter L. Strauss, “‘Deference’ is Too Confusing – Let’s Call Them ‘Chevron Space’ and ‘Skidmore Weight’” (2012), 112 Columbia Law Review 1143.

[19] For example, the Supreme Court of Canada has emphasized that a deferential standard of review permits judicial intervention where the administrative decision does not bear the hallmarks of “justification, intelligibility and transparency” or fall within the “range” of possible, acceptable outcomes. Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. These broad criteria comfortably accommodate various administrative law values by assuring certainty and equality of treatment, for example.

[20] [1969] 2 A.C. 147, at p. 209.

[21] Dunsmuir v New Brunswick [2008] SCC 9; [2008] 1 SCR 190 at 212, per Bastarache and LeBel JJ. Emphasis added.

[22] Report of the Franks Committee on Administrative Tribunals and Enquiries (Cmnd. 218, 1957), at p. 9.

[23] Chevron v Natural Resources Defense Council, 467 U.S. 837 (1984), at pp. 865-866. Separation-of-powers concerns may also have been relevant: “Alternative doctrines of jurisdictional error were rather based on differing views about the proper balance of power between courts and agencies when interpreting the conditions of jurisdiction”. Paul Craig, “Ultra Vires and the Foundations of Judicial Review” (1998), 57 Cambridge Law Journal 63, at p. 76. See generally, Ivan Hare, “The Separation of Powers and Judicial Review for Error of Law” in in Christopher Forsyth and Ivan Hare eds., The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Clarendon, Oxford, 1998), p. 113.

[24] Société Coopérative de Production SeaFrance SA v Competition and Markets Authority [2015] UKSC 75, at para. 31, per Lord Sumption.

[25] [1993] AC 682, at p. 702.

[26] [1993] AC 682, at p. 702.

[27] [1993] AC 682, at p. 704.

[28] [1993] AC 682, at p. 702.

[29] [1993] AC 682, at p. 700.

[30] See also chapter xxx.

[31] [1983] AC 374, at p. 383.

[32] [2009] EWHC 3052 (Admin) (Divisional Court); [2011] QB 120 (Court of Appeal); and [2012] 1 AC 663 (Supreme Court).

[33] [1993] 1 WLR 23.

[34] [1993] 1 WLR 23, at p. 29.

[35] [1993] 1 WLR 23, at p. 32.

[36] [1993] 1 WLR 23, at pp. 32-33.

[37] [1993] 1 WLR 23, at p. 32.

[38] See also Dowty Boulton Paul Ltd v Wolverhampton Corporation (No 2) [1976] Ch 13, where the interpretation of the term “not required” (for the purposes of local authority property purchases) gave rise to “matters of both degree and of comparative needs, as to which there can be no question but that the local authority is better qualified than the court to judge, assuming it to be acting bona fide and not upon a view that no reasonable authority could possibly take”.

[39] [2009] 1 WLR 2557.

[40] [2009] 1 WLR 2557, at para. 26.

[41] [2009] 1 WLR 2557, at para. 27.

[42] [1984] AC 74.

[43] [1984] AC 74, at p. 97, per Lord Fraser of Tullybelton.

[44] [1980] AC 930.

[45] [1984] AC 74, at p. 120, per Lord Bridge of Harwich.

[46] [1984] AC 74, at p. 109. In his speech, Lord Wilberforce justified treating the question of whether the immigrants were “illegal entrants” as jurisdictional by making an analytical distinction between “two parts” of the decision to resort to s. 33 of the 1971 Act, the determination as to whether an immigrant is an “illegal entrant” (a jurisdictional matter reviewable by the courts) being distinct from the decision whether, in all the circumstances, to actually remove the “illegal entrant”. [1984] AC 74, at pp. 99-101. This may very well be the formal basis for the decision – but as I have stressed, my goal in my values-based work is to provide an interpretation (not a description) of the decided cases.

[47] [1986] AC 484.

[48] [1986] AC 484, at p. 518, per Lord Brightman.

[49] [1986] AC 484, at p. 518.

This content has been updated on October 27, 2017 at 16:19.