1. Is there any difference between judicial review for error of law, and a statutory appeal to the Upper Tribunal (see Chapter 12) on a question of law?

• The process in a claim for judicial review, and the remedies the court can give, are different [see chapter 10 on the judicial review process].
• The power of the judges in judicial review is a common law power (though regulated by statute and by the Civil Procedure Rules). Appeals on a question of law are authorized by the Tribunals, Courts and Enforcement Act 2007.
• Under Lord Diplock’s rule, the standard of review of public authorities’ interpretations of the law is the same in judicial review as in appeals on a question of law.

2. What is jurisdiction? Do administrative authorities have any?

• Jurisdiction is power to make a decision (commonly, but not always, a power to decide a dispute) with legal effect. Most decisions that are challenged in judicial review are exercises of a jurisdiction, and you can tell that the defendant in the claim had a jurisdiction simply from the fact that the claimant needs to go to the High Court to get the decision quashed.
• In Anisminic, Lord Reid used the word ‘jurisdiction’ in two senses: for legal power to embark on a proceeding, and for legal power to give a particular decision. In the series of decisions after Anisminic, English judges largely stopped talking about the jurisdiction of administrative authorities, as they departed from the idea that such an agency could make an error of law without exceeding its jurisdiction.

3. Can you reconcile the decision in Anisminic with the statutory ouster clause? Would the approach of the majority in Anisminic have been the right approach, if there had been no ouster clause in the legislation setting up the Commission?

• An act of Parliament 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’. So the decision is only compatible with the ouster clause, if the House of Lords was not calling in question a determination of the Commission. The majority claimed not to be doing so, on the ground that there was no determination. But it was indefensible (as Lord Morris’s dissent forcefully argues) for the majority to claim that the Commission had not determined Anisminic’s application. It was not indefensible because anything the Commission presents as a determination must be a determination. It was indefensible because the idea that there was no determination by the Commission must be based on the idea that the Commission wasn’t really interpreting the rules at all. There was no good ground for saying that.

4. Is fact finding a discretionary power?

• It is in some circumstances, according to Lord Hoffmann; see the discussion of Begum v Tower Hamlets LBC [2003] UKHL 5 (8.3.1).
• Fact finding is not discretionary merely because the judges leave leeway to the initial decision maker in judicial review. There is no discretion at all to act on an inaccurate view of the facts: every duty to apply some standard implies a duty to act on a sound understanding of the facts on which the standard depends. If a tribunal can see that the facts are clearly in favour of a complainant, then the tribunal has no discretion: it has a legal duty to hold in favour of the complainant. Yet there is no judicial review of its decision to the contrary, unless the court can legitimately identify its fact finding as patently unfounded.
• There is discretion in identifying the facts, however, whenever the law does not require a decision one way or another; it does that very frequently, because the answers to many questions of fact (such the question of how serious the drug problem was in Mrs Begum’s neighbourhood) depend on judgments that the law leaves to the administrative authority.
• The ECJ has decided that fact finding can be a discretionary power: ‘the Community legislature’s broad discretion, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts’ (Case C-310/04 Spain v Council [2006] ECR I-07285 [120-1]). The Council needs to be given that discretion in crafting regulations that depend for their proportionality on legislative facts such as the economic effect of regulatory measures. Such facts are uncertain and highly controversial, and can only be assessed through forecasting for which legislative bodies are better placed to take political responsibility than courts are. But note that the Community institutions’ discretion on such questions is still controlled by the ECJ: the Court can quash a decision of the Council ‘if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the legislation in question’ (Spain v Council [120]).

5. What is the relationship between The List of things that make an administrative decision a nullity in Lord Reid’s speech in Anisminic (see 9.1.4), and The List of substantive features of an exercise of power that make it unlawful in Lord Greene’s reasons in Wednesbury (see 7.1.2)?

• Here are the lists:

Lord Reid’s List of things that make an administrative decision a nullity • ‘It may have given its decision in bad faith.’ • ‘It may have made a decision which it had no power to make.’ • ‘It may have failed . . . to comply with the requirements of natural justice.’ • ‘It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it.’ • ‘It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account.’ (Anisminic171).

Lord Greene’s List of substantive features that make an exercise of power unlawful • Error of law (‘A person entrusted with a discretion must, so to speak, direct himself properly in law.’) • Irrelevance (‘He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.’) • Something so absurd that no sensible person could ever dream that it lay within the powers of the authority—a decision that no reasonable body could have come to. • Bad faith. (Wednesbury225).

6. Every fact that is relevant to the exercise of a power is a relevant consideration. So if there is judicial review for failure to decide on the relevant considerations, doesn’t that mean that there must be judicial review for error of fact?

• There seems to be something to it. In R v Transport Secretary, ex p Alconbury [2001] UKHL 23 [53], Lord Slynn approved the following view from de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995), p 288:

‘The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention.’

• But many errors of fact cannot be absorbed into failure to base the decision on any evidence, or failure to provide reasons. And they can be absorbed into the taking into account of an irrelevant consideration only if the law demands that a particular fact be taken into account (see 8.2 on the doctrine of relevant considerations). And that will be the case only when the fact in question can be identified by a court in judicial review in such a way that there is no breach of comity in interfering with the initial decision maker’s determinations of fact. And that is not the case with all facts that initial decision makers must determine.

7. Decisions of the High Court are not susceptible to judicial review. Does that mean that the High Court has unlimited jurisdiction?

• No. Its jurisdiction is actually tightly limited. For example, it has no jurisdiction to commence proceedings –the judges need to wait for a claimant to bring a claim before them. The High Court cannot hear an ordinary claim that does not assert a right to a legal remedy, or a claim for judicial review by a party without a sufficient interest in the matter. And its jurisdiction in judicial review and in ordinary claims is limited by the principle of justiciability (see 7.3.1).

Additional questions:

Do public authorities have any leeway in deciding what their rules are?

• Not very much, in principle: a court will quash a decision based on a view of the rules that the judge finds to be in error. But judges may often defer in practice, by holding that an administrative authority’s interpretation of its rules was not in error. And public authorities have leeway in applying their rules. That is, a court will not quash an application of the rules merely because the judge disagrees as to how to apply them to the facts of the case. So if the court decides that the public authority has stated the rules correctly, it will only quash a decision applying those rules if the decision was patently unreasonable: Edwards v Bairstow [1956] AC 14.

In the South Yorkshire Transport case, the Commission had no jurisdiction to hear a reference concerning a merger that did not affect a substantial part of the UK. Does that mean that the courts ought to substitute their judgment for that of the Commission on the question of whether the merger in question affected a substantial part of the UK, in order to keep the Commission within its jurisdiction?

• Lord Mustill’s construction of the jurisdictional requirement left the Commission a broad ‘permissible field of judgment’ (32) within which it could decide for itself whether it had jurisdiction. Was that the right view? The orthodox view of the judges is certainly that it is their job to decide the jurisdiction of an administrative decision maker.
• Keep in mind that on the orthodox view, even on a question that determines jurisdiction, the judges may leave considerable discretion to the administrative agency by interfering only when the public authorities under review got it wrong. If there are two different legitimate ways of understanding its jurisdiction, the judges can leave the choice to the administrative authority.
• Note, also, that the rationale for jurisdictional control, like the rationale for any judicial review, is to prevent arbitrary government, and not to deliver government by judges. So you may come to the conclusion that, if the tribunal itself is better equipped to decide the how far its jurisdiction ought to extend, then the court ought to defer to its view, and interfere only to prevent arbitrary extensions of its jurisdiction. But remember, that is not the common view of the judges!

Summary Table of grounds of judicial review: three classic statements

Note: Like any common law decision, these are authority only for the proposition of law on which the case was decided. So their legal effect depends on their facts. None of them can be taken as a general statement of the grounds of review of all administrative decisions.

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (CA)	CCSU v Minister for the Civil Service [1985] AC 374	R v Transport Secretary, ex p Alconbury [2001] UKHL 23
“a person …must, so to speak, direct himself properly in law”	Illegality ‘By “illegality” as a ground for review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.’	[error of law] It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, …
He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. -fettering -refusal to exercise and: manifestly unjust –Kruse, Coughlan	Irrationality ‘By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness”…’	[unreasonableness] …or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside.
[natural justice]	Procedural Impropriety	If he fails to follow necessary procedural steps… the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control. But none of the judgments before the ECtHR requires that the court should have “full jurisdiction” to review policy of the overall merits of a planning decision