#16118 - Errors Of Fact - Administrative Law

Administrative Law: Errors of Law, Errors of Fact

Craig, Administrative Law, Chs. 16, 17 & 24 2

ERROR OF LAW 2

Theories of jurisdiction 2

Case law history 3

Current Caselaw 4

Policy Considerations 5

Error of fact 6

Remedies: invalidity 8

Errors of Law (‘Jurisdiction’) 8

*Anisminic v Foreign Compensation Commission [1969] 2 AC 147, HL 8

Pearlman v Keepers and Governors of Harrow School [1979] QB 56 9

O'Reilly v. Mackman [1983] 2 AC 237 (HL), at 275c-276f 9

*R v Lord Chancellor ex parte Page [1993] AC 682 10

*R v Monopolies & Mergers Commission, ex p. South Yorks Transport [1993] 1 All ER 289, HL 12

*Secretary of State for the Home Department v Rehman [2003] 1 AC 153 (NB does majority accept [50] & [54]?) (NOFL) 12

**R (Cart) v The Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 (NB Supreme Court) 12

*Jones v First Tier Tribunal [2013] UKSC 19, [2013] 2 AC 48 (NB Supreme Court) 13

*T.R.S. Allan, “Doctrine and Theory: An Elusive Quest for the Limits of Jurisdiction” [2003] Public Law 429 (NOFL) 14

The Consequence of an Error of Law - Void, Null, Voidable, Invalid? 14

C. Forsyth, 2007 Cambridge LJ 14

*D Feldman, ‘Error of Law and Flawed Administrative Acts’ (2014) 73 Cambridge LJ 275 (NOFL) 15

*Compare R v Govr of Brockhill Prison, ex p. Evans (No 2) [2001] 2 AC 19 & (NOFL) 15

*R (WL (Congo)) [2012] 1 AC 245, SC (NOFL) 16

Review of Findings of Fact (NB Craig, ch 15) 16

R. v. Hillingdon L.B.C. ex parte Puhlhofer [1986] 1 AC 484 (HL), at p.517 16

R v Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74, HL 16

R. v. CICB, ex parte A [1999] 2 AC 330, Lord Slynn’s judgment 17

*Alconbury [2001] 2 All ER 929, HL 17

**E v Secretary of State for the Home Department [2004] QB 1044, especially paragraphs [44] - [67] 18

Connolly v Secretary of State for Communities and Local Govt [2009] EWCA Civ 1059, paras 1-40 18

R (CJ) v Cardiff CC [2011] EWCA Civ 1590 18

*Bubb v L B of Wandsworth [2011] EWCA Civ 1285 19

The Fact / Law Distinction (cases above … and…) 19

*Edwards v. Bairstow [1956] AC 14 HL 19

*Moyna v. Secretary of State for Work & Pensions [2003] 4 All ER 162, HL 20

*T. Endicott, “Questions of Law” (1998) 114 LQR 292 20

R. Williams, “When is an Error not an Error? Reform of Jurisdictional Review …” (2007) Public Law 793 21

• Traditional theories draw distinction between jurisdictional errors (those relating to the kind/type/scope of case into which a public body could enquire) and non-jurisdictional ones (those relating to truth/detail of the findings it made) – only jurisdictional errors are subject to review because reviewing errors made internally within the body’s assigned are would blur the distinction between review of legality and appeal

  • However courts haven’t always drawn distinction rationally; sometimes it’s influenced by whether the court wanted to intervene. Nevertheless most judges thought a divide could be drawn on analytical terms

• Most recent theories don’t draw the distinction – intervention is based on error of law (distinction between law and fact) and cause controversy as courts may not be better at resolving issues of law than the public bodies they’re reviewing

Collateral Fact Doctrine (Lord Diplock, Anisminic – authoritative until 1960s)

• Thesis: There are preliminary questions that public bodies must answer before they can proceed on the merits, and these relate to whether the body was properly constituted, and whether the case was of a kind referred to in the statute (questions can involve fact, law or discretion). Public body makes an initial determination, but if the court finds on review that the situation in the statute didn’t exist then the public body’s finding is null.

• Difficulty: normally, statutes would say if X1, X2 and X3, then public body shall/may do Y. But if the X factors were deemed always to be jurisdictional, then the line between appeal and review would disappear and public body would only have the power to do whatever accorded with the opinion of the court

  • Diplock’s resolution: if misconstruction of the statute relates to kind of case, then it is jurisdictional, but if it relates to situation then it is internal (but this line is impossible to draw – there is no predictability as to how a case will be categorized before the court categorizes it, and no ex post facto justification for why cases are so categorized)

Limited Review (Gordon)

• Thesis: if a public body is given jurisdiction over a certain topic then the question is whether the facts relating to the topic exist in the opinion of the public body (eg. if the topic is assault, then as long as the public body asked the right question (was there assault in the opinion of the public body?) then it will bind, even if it made the wrong answer).

• Difficulty: distinction between scope and truth is misconceived – it is fallacious to say that asking the wrong questions is always a question of jurisdiction; the subject matter of inquiry might involve decisions on a number of issues, and yet since each isn’t a subject matter by itself any error is only within jurisdiction. The fallacy is most evident when considering f(a,b,c,d…)=furnished tenancy – Gordon would only inquire into whether the right term, “furnished tenancy”, has been used, and doesn’t allow the court to peer into the meanings in the bracket (terms certain, intent, amount of fixture and fittings…) as these are termed non-jurisdictional. And yet the term is only a short hand for what is in the bracket – such a distinction makes little sense. As such, it would allow terms to become ‘empty vessels’ into which anything can be poured.

Extensive Review - Academic (Gould)

• Thesis: The preliminary question of whether a public body was empowered to answer the relevant issue is decided on the opinion of the court, because it exists independently/as a precursor to the exercise of jurisdiction. The question is based on facts whose meaning cannot be altered by the public body, but relative to the opinion of the courts.

• Difficulty: why should all issues of law be ‘given’, and determined by the courts?

  • Parliamentary intent – problem is that the argument depends on an irrebuttable presumption that Parliament intended the courts to decide on questions of law. This has been true in practice in the last 40 years but not in the 300 years before this.

  • Impossibility (Gould: it wouldn’t be possible to talk of error of law unless there’s a ‘given’ meaning, to be determined by the courts) – this is a fallacy because all terms can have a number of meanings and “error of law” simply means that the court’s meaning is better than the public body’s. However Parliamnet may well prefer precise meanings adopted by specialist bodies rather than the general judicial meaning

  • Uniformity (only adopting court’s interpretation, rather than inferior bodies’ diverse interpretations, can achieve uniformity) – but this argument doesn’t apply to bodies with internal hierarchy (top can define and bottom uses the definition).

Extensive Review: Judicial (Page – Browne-Wilkinson)

• Thesis: Parliament only conferred decision-making powers on the basis that it was to be exercised on the correct legal basis (so that misdirection in law while exercising the power rendered it ultra vires). The presumption that any error of law is reviewable is rebuttable, and the strength of the presumption varies according to the institution being reviewed

• Difficulties:

1. Meaning of ‘ultra vires’ is problematic: Necessary to distinguish four aspects of reasoning in Page:

   1. Disapproval of collateral fact doctrine (welcomed)

   2. Replacement of the doctrine with test that all errors of law are open to scrutiny (similar to Gould’s theory – objections there apply here; if all X factors are open to review, then this means that court’s definition of terms like “employee” are preferable to public body’s)

   3. Though the decision was based on ultra vires, it gives the term a different meaning: Anisminic said that jurisdictional errors were ultra vires, but Page says that any error of law may be ultra vires. Sir John Laws says that the ultra vires principle isn’t needed anymore because the courts are essentially reviewing all errors of law, but it is still useful in providing a legitimate device for exercise of courts’ power.

   4. There is a latent duality in the meaning of ultra vires given by Browne-Wilkinson: 1) contrary to legislative intent (701) and 2) contrary to the general law of the land, including common law (no longer limited to legislative intent – 702)

2. Test depends on defining ‘error of law’ (versus error of fact) yet judicial precedent provides little guidance as to which is which (because judicial attitude was based on collateral fact). Shift towards attitude that all errors of law are jurisdictional makes distinction more important. Three themes in literature:

   1. There can be disagreement, but issues regarding meaning of statutory terms should always be a question of law

   2. But the courts don’t always adopt this approach – sometimes they decide based on whether they wish to intervene

   3. Courts have sometimes thought that when an issue is deemed one of law then substitution of judgment is inevitable, but when a spectrum of reasonable interpretations are available then it must be a question of fact. This doesn’t follow: a legal issue doesn’t stop being such just because it’s open to multiple interpretations

Conclusion

1. Scope vs truth/detail is unsatisfactory as test for what is jurisdictional

2. ...