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Are the exceptions to the principle that all errors of law are jurisdictional coherent?

The decision of the House of Lords in Anisminic produced waves of commentary trying to discern its effect on the previously acknowledged distinction between jurisdictional and non-jurisdictional errors of law. It was only when the Court of Appeal considered the matter in Pearlman v Governors of Harrow School that Lord Dennings attractive judgement would refocus the law on this area, stating No courthas any jurisdiction to make an error of law on which the decision of the case depends. He reasoned that after Anisminic, the distinction between jurisdictional and non jurisdictional error was so fine that the High Court had a choice whether to interfere with an inferior court on a point of law. The restatement of this pillar of administrative law practically fused any remaining distinction between jurisdictional and non-jurisdictional errors. Despite the fact that the current orthodoxy is to describe the two as now one and the same, there remain three main exceptions to the general principle that all errors of law are jurisdictional. It is submitted that the exceptions which will be later analysed are organised around the central principle of the separation of powers and institutional competence. Thus it can be said that the exceptions to rule that all errors of law are jurisdictional have a coherent basis. However this basis is flawed as it submitted that in the interests of effective administration, reviewing courts are not always best placed to authoritatively state the law compared to a specialised administrative tribunal. I will first attempt to demonstrate how the exceptions to the principle have an element of coherence to them and then make submissions as to how this coherent basis is fundamentally flawed.

One exception to the principle that all errors of law are jurisdictional occurs where the relevant law is a special system of rules, for example those applying to a specific institution or organisation. This was evident in R v. Lord President of the Privy Council ex parte Page [1993] where the relevant system of rules was the ordinances of the University of Hull. The House of Lords were asked to decide if a termination of employment was beyond the universitys powers in the claimants particular circumstances. Lord BrowneWilkinson explained that although generally decisions affected by errors of law made by tribunals and inferior courts can be quashed, the rule did not apply in ex p Page to a decision made under University ordinances. He explained that whilst the courts jurisdiction for error of law is based on ultra vires and the idea that that the law applicable to a decision is the general law of the land, the decision of the University acting through a visitor is not concerned with the general law of the land but a peculiar, domestic law of which he is the sole arbiter and the courts have no cognisance. The principle outlined by Lord Browne-Wilkinson touches on the underlying coherent basis for the exceptions to the rule that all errors of law are jurisdictional. The House was concerned that the decision maker with the greatest understanding of the relevant law was not the supervisory jurisdiction of the High Court, rather the body charged with administering this unique and esoteric collection of rules. The decision also reveals how

the courts, who usually justify their error of law jurisdiction with a separation of powers argument, are less concerned with this constitutional bastion when the applicable law is not the general law of the land. This exception was followed in R v Registrar of Companies ex parte Central Bank of India [1986] in which Slade LJ noted there was no absolute rule that when an administrative authority made an error of law its decision is inevitably ultra vires. This exception for special systems of rules has the coherent basis outlined above which it is submitted that other exceptions share.

A further exception to the general principle concerns the nature of the decision making body. In Re Racal Communications Ltd [1986] the court decided that the High Court could not commit jurisdictional errors of law. Lord Diplock stated that there is a distinction between jurisdiction conferred by state on a court of law of limited jurisdiction to decide a defined question and the jurisdiction of the High Court. As he put it, mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court. His obiter comments hark back to the underlying coherent rationale which I have submitted exists between these exceptions. Lord Diplock suggested that tribunals have no authority to determine questions of law conclusively, any error of law which they commit will constitute an excess of jurisdiction. Inferior courts of law however, can determine questions of law conclusively, he suggests because Parliament intends to respect their views. These remarks point to the underlying rationale of institutional competence, namely that the judges of the common law have a greater competence to settle points of common law. It will later be submitted that the moniker court actually has little relevance to competence, however this is the rationale for an exception to the general principle of accepting errors of law as only jurisdictional. In the later case of R (Cart) v. Upper Tribunal [2009] the Court seemed to approve of the High Courts special constitutional perch, commenting on its role as guardian of standards of legality and due process. Cart actually went some way to re introducing a distinction between jurisdictional and non jurisdictional errors of law by recognising a more limited power of review over the Upper Tribunal concerned, however despite this the Court did not fail to pay lip service to the separation of powers argument which underlies the exceptions.

A third exception to the general principle that all errors of law are jurisdictional was established by R v. Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993]. Lord Mustill suggested that a jurisdictional statutory term which would, under the general principle be subject to the supervisory jurisdiction of the High Court could in certain circumstances be immune. He envisaged that rather than a clear cut matter for the court to decide, the jurisdictional term may be capable of producing a number of answers, in this case in reference to the term substantial. If so, then the decision maker acts lawfully by choosing any of the answers within a range. There is no answer which a High Court could claim to be more right in law than any other. Lord Mustill clearly identified a category of cases in which substitutionary review will not apply if the

jurisdictional statutory term allows the judge to make a decision within an acceptable range. Williams [2007] PL contended that substitutionary review should almost never apply, except in cases in which the statutory term has only one possible correct meaning. Without an objectively correct answer, there can be no error of law. It is submitted that this goes too far, and this exception to the general principle fits coherently with the others when considered under the light of institutional competence. So the theory says, judges of the High Court are best placed to construe the law.

Following my submissions that the exceptions to the general rule of jurisdictional errors of law have some coherence about them, it is suggested that the underlying rationale for the rule is flawed. Daly noticed that the underlying rationale of institutional competence and is flawed when closer examining the separation of powers. Indeed, Ivan Hares argument in The Separation of Powers and Judicial Review for Error of Law (1998) does not address why the three functions need to be separated and whether law making and law interpreting powers can be vested in bodies other than courts. It is submitted that it is often the case that the delegated decision maker has greater familiarity with the purpose of the statue and the underlying issues than a reviewing court. The best solution to a legal problem may come from the decision maker who better understands the policies and legislative intent behind the statute. The modern administrative state has generated the potential for legal disputes in more niche fields than ever before. If one imagines a dispute over aerospace law, or even space law, it is submitted that a delegated decision maker with a relevant scientific background is more competent to interpret the law than a reviewing court. Dyzenhaus commented that judges, whether consciously or unconsciously will impose their own standards of rationality on the administrative process. These standards may be blind to the more nuanced knowledge and familiarity of the delegated decision maker. It has been submitted that the exceptions to the principle that all errors of law are jurisdictional do have an element of coherence to them, broadly based on the idea of separation of powers and the institutional competence advantages which this is supposed to bring. However, whilst this rationale is a coherent one, it is submitted that it is fundamentally flawed. Courts are not an automatic panacea for the problems faced by administrative law and our constitution would benefit from greater deference to delegated decision makers.