#10531 - Jurisdiction - Administrative Law

This topic deals with judicial review for what Lord Diplock termed `illegality’ in CCSU. In fact, it is far from clear that `illegality’ is in any way sufficient as a label for the sheer variety of bases on which judicial review may be granted in this area, and it may fairly be claimed that we are in reality dealing with several interlinked heads of review - simple error of law, jurisdictional review, error of fact, etc. - rather than one broad ground. Recently, courts have been keen to prioritise the idea of `abuse of power’ as a distinct basis of review from error of law.

Here we are talking about the jurisdiction of a decision maker to make certain decisions, not the jurisdiction of the court to review those decisions.

The concept of ‘jurisdiction’ is both central to administrative law and highly problematic:

• It is central because it constitutes an (arguably the) organising concept around which the law of judicial review is structured.

Arguably all of Administrative law is about jurisdiction. The one and only ground under upon which the courts may intervene is that the decision maker has ‘acted ultra vires’ – or in other words ‘exceeded his jurisdiction’.

• It is highly problematic for several inter-related reasons, all of which concern the inherent uncertainty and instability of the concept of jurisdiction.

It is often difficult to identify the boundary between jurisdictional and non-jurisdictional questions. This characterisation is often highly significant. The decision maker’s decision on jurisdictional questions is never conclusive – it is open to the reviewing court to decide jurisdictional matters for itself.

Although we will need to qualify this point, we need to begin by understanding the difference between jurisdictional questions and merits questions. What is the fundamental distinction between these two types of questions? Most statutory powers can be broken down into an ‘if…then’ analysis.

1. If [a particular condition is met, or a particular state of affairs exists (e.g. that X is an ‘illegal entrant’)]

2. Then [the decision maker may exercise discretion by choosing whether to, say, carry out a particular activity (e.g. detaining X)].

The first is a jurisdictional question (may it be exercised), while the second is a merits question (should it be exercised). The first question represents a limit on the DMs power – when he addresses the first question, then, he enjoys no discretion. There is only one correct and lawful answer: the answer favoured by the reviewing court.

• Jurisdictional questions: Ultimately for the court (in the sense that the court has the final word over what constitutes the right answer).

This asks whether the power can be exercised. (e.g. in the case of the Home Secretary’s ability to detain illegal immigrants – is this person an illegal immigrant?).

The decision maker enjoys no discretion here – either the power can or cannot be exercised in the circumstances of the particular case. This is a jurisdictional matter pure and simple. The primary defining characteristic of a jurisdictional matter, then, is that it cannot be conclusively determined by the decision maker. It follows from this that if the person concerned is not shown to be an illegal immigrant to the satisfaction of the reviewing court, then any purported exercise of the discretion to detain him will be struck down. Categorising a particular matter as jurisdictional then is highly significant – the DMs conclusions on such a matter are never conclusive – it is open to the reviewing court to decide the matter for itself.

If an error is jurisdictional, the decision maker has to get it right. If he gets it wrong, he is outside his jurisdiction and the decision must be quashed.

• Merits questions: Ultimately for the decision-maker (in the sense that there is generally no right answer capable of being judicially imposed).

Should the power be exercised? (i.e. should this person be detained).

In attempting to understand the distinction between jurisdictional and merits questions further, it is helpful to pose four questions:

• Does the question have a right answer?

  • Jurisdictional Questions: Yes.

  • Merits Questions: No.

• What is the court’s role?

  • Jurisdictional Questions: is the decision maker’s decision right?

  • Merits Questions: has the power been exercised in a lawful manner?

• What is the status of the decision-maker’s determination?

  • Jurisdictional Questions: Preliminary.

  • Merits Questions: Final.

• How can the style of review be characterised?

  • Jurisdictional Questions: Substitutionary. It’s a very interventionist approach.

  • Merits Questions: Non-Substitutionary.

This means that whether a question is characterised as jurisdictional or based on merits has huge practical impacts.

According to the ‘original jurisdiction fallacy’, jurisdiction is established—at the outset—on a once-and-for-all basis. In other words, jurisdiction, once secured, cannot be lost. But this view is no longer sustainable in the light of cases such as Anisminic v Foreign Compensation Commission [1969] 2 AC 147. Rather, it is now accepted that jurisdictional questions may (generally will) have to be confronted by decision-makers in the course of answering the merits question.

The view that said there was only one jurisdictional hurdle – the original jurisdictional fallacy – is wrong. There are a series of jurisdictional hurdles, and jurisdiction gained at the outset can be lost by getting a subsequent jurisdictional question wrong.

The initial jurisdictional hurdle is the first, ‘if’ question – the initial, obvious jurisdictional hurdle e.g. whether the person is an illegal immigrant. There are however subsequent jurisdictional questions encountered whilst considering the merits question (or more properly the subsidiary jurisdictional questions before the true, primary merits question – the ‘then’ question – should the power be exercised).

These subsequent jurisdictional hurdles are questions that engage any of the grounds of judicial review.

Consider, for instance, the following subsidiary questions which may arise in the course of making a decision on the merits:

Must the individual concerned be given an oral hearing?

• Can the decision-maker take particular factual information into account?

• Can a legitimate expectation be departed from?

• Must the decision-maker disclose certain adverse evidence to the individual concerned?

What do these questions have in common? And why are they rightly characterised as subsidiary jurisdictional questions, rather than as merits questions? They are subsidiary jurisdictional questions because they too cannot be conclusively determined by the decision maker. The fact that the court feels willing to intervene and strike down a decision if these questions are answered wrongly makes them necessarily jurisdictional

If these subsidiary questions are answered incorrectly, this will cause the DM to exceed his power – exceed his jurisdiction. His decision will therefore be unlawful just as though he had at the first stage erroneously concluded that he had the power to act. (Rather circular!)

The rest of the course is concerned with these subsidiary jurisdictional questions. We can put them aside for now, but must remember that they are all strictly speaking jurisdictional questions that come before the true merits question.

A further difficulty arises. How do we distinguish between:

• criteria which constitute primary jurisdictional requirements, such that their existence (or not) is ultimately a matter for the court; and

• criteria which do not constitute such requirements, such that their existence (or not) is ultimately a matter for the decision-maker (provided that it complies with any relevant secondary jurisdictional requirements)

But what actually is it that constitutes the primary jurisdictional requirement? If we stick to the ‘if…then’ analysis, it is important to know what it is that constitutes the if part of the question.

In the example of the Home Secretary being able to detain ‘illegal entrants’, we can say the DM does not have the power to detain people who are not illegal entrants. Whether the person concerned is actually an ‘illegal entrant’ is therefore the primary jurisdictional question. But they are not always this easy to identify.

We have already seen enough of the subject of jurisdiction to know two things about it:

• It is about drawing lines

• Those lines are hard to draw

Say the statute actually said that the DM has the power to detain ‘dangerous illegal entrants’. Is the dangerousness of an illegal entrant a jurisdictional question that the court should have the last say on?

• Did Parliament intend that the DM should be able to decide who to detain out of a pool of ‘dangerous illegal entrants? If so, dangerousness is jurisdictional; subject to correctness review.

• Did parliament intend that the DM should be able to determine which illegal entrants are ‘dangerous’? If so, dangerousness is a merits question; subject to reasonableness review.

This relates back to one of our opening points: that this area of the law of judicial review, while presented as an exercise in conceptual or analytical reasoning, is really heavily influenced by considerations of policy. On this point, see further Farina (1989) 89 Columbia Law Review 452 at 452–453. (In...