When is an Error not an Error? Reform of Jurisdictional Review of Error of Law and Fact

Transcription

1 Reform of Jurisdictional Review of Error of Law and Fact 793 Q1 When is an Error not an Error? Reform of Jurisdictional Review of Error of Law and Fact Rebecca Williams * Pembroke College, Oxford [Keywords to Follow] Over the past 30 years judicial review of jurisdictional error has changed dramatically, from the decisions in Anisminic v Foreign Compensation Commission 1 and R. v Lord President of the Privy Council Ex p. Page, 2 through to the recent decision in E v Secretary of State for the Home Department, 3 yet the essential question remains the same; in what circumstances can and should the courts interfere with an administrative decision-maker s assessment of its own jurisdiction? To take a practical example, 4 let us assume that a statute provides as follows: the local authority may prohibit the use of vehicles in Park X. Let us also assume that the local authority has banned skateboards from the park, but C, an avid skateboarder, argues that since skateboards are not vehicles the authority has exceeded its jurisdiction by doing so. We know from Anisminic and Page that all relevant 5 errors of law are in principle jurisdictional, or reviewable, 6 and there is no longer any need, or indeed any room, to apply the old concept of error of law on the face * I would like to thank Mark Elliott and Timothy Endicott for their helpful comments on this piece, but of course any remaining errors are mine alone. 1 [1969] 2 A.C [1993] A.C [2004] EWCA Civ 49; [2004] Q.B Inspired by H.L.A. Hart in The Concept of Law (Oxford University Press, 1961), pp [W]hat must be shown is a relevant error of law, i.e. an error in the actual making of the decision which affected the decision itself, Lord Browne-Wilkinson in Page, fn.2 above, p Subject to certain exceptions, including the domestic nature of the rules applied by the decisionmaker (see Page, fn.2 above); possibly inferior courts (Re Racal Communications Ltd [1981] A.C. 374) or at least inferior courts in circumstances where there is a finality clause in the statute (R v Bedwellty Justices Ex p. Williams [1997] A.C. 225) and certain exceptional circumstances where a remedy may not in any event be granted were the error to be held to be jurisdictional (e.g. R. v Registrar of Companies Ex p.centralbankofindia[1986] Q.B. 1114, pp See also R. v H.M. Coroner for Inner London South District Ex p. Douglas-Williams [1999] 1 All E.R. 344, p.347 and R. v H.M. Coroner for Greater Manchester Ex p. Tal [1985] Q.B. 67).

2 794 Public Law of the record. 7 So if we want to review the authority s decision, one option might be to hold that it has made an error of law by defining a skateboard as a vehicle. The argument in favour of doing so is obviously that the term vehicle appears in the statute and that classifying a skateboard as falling within this statutory term has legal implications; if a skateboard is a vehicle the local authority has power to prohibit its use in Park X. However, it could equally be argued that any error on the part of the authority was solely one of fact; if the authority went wrong at all, it was only in its application of the term vehicle to the facts in front of it. 8 Until recently this second conclusion would have made review of the authority s decision more difficult. Indeed, many of the commentaries on this area of law in the past 9 have centred on the courts manipulation for pragmatic reasons of the fact/law distinction; defining an issue as an error of law after Anisminic and Page would allow the court to intervene, while defining it as an error of fact (or fact and degree ) would generally allow the court to decline to review it. Nevertheless, even before the decision in E, 10 courts could review errors of fact in three circumstances 11 : error of jurisdictional, or precedent, fact 12 ; review of evidentiary findings 13 ; and misunderstanding of an established and relevant fact. 14 The first of these three categories raised precisely the same problem that had plagued errors of law prior to Anisminic and Page; not only could the line between law and fact be manipulated for pragmatic reasons, so could the line between jurisdictional (i.e. reviewable) and non-jurisdictional (i.e. non-reviewable) errors within the law and fact categories. 15 To return to the example of the skateboard, if the court wished to substitute its definition of the term vehicle for that of the local authority, it could do so either through classification of the authority s decision as an error of law (jurisdictional/reviewable since Page) or by classifying it as a jurisdictional error of fact. Yet none of these terms have any inherent meaning and the real decision would thus be the same throughout; whose decision on the meaning of vehicle should prevail? The second and third categories of review for error of fact are slightly different. Unlike jurisdictional error, which would cover the skateboard 7 See Lord Irvine L.C. in Boddington v British Transport Police [1999] 2 A.C. 143, p See further T. Endicott, Questions of Law (1998) 114 L.Q.R e.g. P. Cane, Administrative Law (4th edn, Oxford University Press, 2004), pp ; P. Craig, Administrative Law (5th edn, Sweet and Maxwell, 2003), pp ; H.W.R. Wade and C.F. Forsyth, Administrative Law (9th edn, Oxford University Press, 2004), p.944 and J. Beatson, The Scope of Judicial Review for Error of Law (1984) 4 O.J.L.S. 22, pp E,fn.3above. 11 See further, e.g. Wade and Forsyth, fn.9 above, pp e.g. Bunbury v Fuller (1853) 9 Exch. 111; White and Collins v Minister of Health [1939] 2 K.B. 838; R. v Fulham, Hammersmith and Kensington Rent Tribunal Ex p. Zerek [1951] 2 K.B. 1 and R. v Secretary of State Ex p. Khawaja [1984] A.C e.g. R. v Criminal Injuries Compensation Board Ex p. A [1999] 2 A.C. 330; Edwards v Bairstow [1956] A.C. 14; Begum (Runa) v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 A.C. 430; R v Bedwellty Justices Ex p. Williams [1997] A.C. 225 and Lord Diplock in Mahon v Air New Zealand [1984] A.C. 808, p See Scarman L.J. in Secretary of State for Education and Science v Tameside MBC [1977] A.C and R. v Criminal Injuries Compensation Board Ex p. A [1999] 2 A.C e.g. Craig, fn.9 above, p.503.

3 Reform of Jurisdictional Review of Error of Law and Fact 795 question directly, review of evidentiary findings instead allows the reviewing court to assess what the decision-maker has done with the evidence. Thus if, as in Ex p. A, 16 the local authority had ignored a particular piece of evidence, or made a decision without citing any relevant evidence, the court would be able to intervene by reviewing these evidentiary issues. The decision in E It is from the third category, misunderstanding or ignorance of an established and relevant fact, that the decision in E emerged. 17 Carnwath L.J., giving the judgment of the court, held that this category of errors constituted a separate ground of review, based on the principle of fairness. 18 This ground would be made out when five factors were fulfilled. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been established in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake, and fourthly, the mistake must have played a material (though not necessarily decisive) part in the tribunal s reasoning. 19 There is also a suggestion that the statutory context must be one where the parties share an interest in co-operating to achieve the correct result, 20 though it is not clear what, precisely, this entails. Quite how much the decision in E alters the landscape of review for error of fact depends in part on how widely it is taken to apply. In a previous edition of this journal Paul Craig has argued that intervention is [now] possible in principle for all species of mistake of fact and thus we should no longer seek to draw formal distinctions between different species of factual error. 21 On this interpretation, the narrow misunderstanding or ignorance of an established and relevant fact category has evolved, subsuming the other categories of evidential review and jurisdictional fact to create one large category of material error of fact which is the direct equivalent of relevant error of law. If so, then E is the Page of errors of fact and we can now conclude that all errors relating to jurisdictional conditions, whether of law or fact, are in principle jurisdictional, or reviewable. 16 A, fn.13 above. 17 The ground was first suggested by Scarman L.J. in Secretary of State for Education and Science v Tameside MBC [1977] A.C. 1014, but it was more recently picked up by Lord Slynn in R. v Criminal Injuries Compensation Board Ex p. A, fn.13 above. In R. (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions) [2001] UKHL 23; [2003] 2 A.C. 295 Lord Slynn returned to the issue, joined this time by Lords Nolan and Clyde. 18 E, fn.3 above, at [63]. 19 ibid., at [63] [67], especially [66]. New evidence in relation to these four points would, it was held, be admitted under the principles laid down in Ladd v Marshall [1954] 1 W.L.R (see further [68] [89]). 20 ibid., at [66]. 21 P. Craig, Judicial Review, Appeal and Factual Error [2004] P.L. 788, p.797.

4 796 Public Law As he shows, such a development is not to be welcomed unreservedly, 22 leading as it does to greater court intervention and a corresponding decrease in the autonomy of initial decision-makers. 23 It is well known that the US Supreme Court has deliberately avoided this kind of extensive review 24 and in R. (on the application of Iran), 25 the Court of Appeal noted that to make too great a use 26 of the ground of review in E would be to reintroduc[e] an appeal based on errors of fact through the backdoor. The challenge, then, can be simply put. On the one hand, experience shows that any attempt to categorise cases in which the courts will intervene results in the boundary of that category being manipulated so that in practice the courts simply intervene when they have pragmatically good reasons for doing so. On the other hand, if we accept that it is not possible to draw analytical distinctions between different categories of case and we thus conclude that in practice any error is prima facie reviewable, we open the door to potentially damaging levels of judicial intervention. Craig s solution to this problem is to focus instead on the level of failure necessary for a finding that there has been an error by the original decision-maker. How mistaken must that body be before the courts will replace its judgment with one of their own? Where the error is alleged to have occurred during a process of complex factual assessment it will be necessary for reviewing bodies to choose a test to work out whether or not to intervene. 27 Two candidates he suggests for this job are the US substantial evidence test and the rationality or arbitrariness test, though as he also points out, a finding unsupported by substantial evidence will be regarded as arbitrary so that the tests converge. 28 However, it should be noted that to adopt this approach would in fact be to change the conceptual basis of our intervention, at least in questions of jurisdiction. Instead of asking whether the decision-maker did the right things with the evidence in front of it, any test of the kind Craig suggests moves towards asking whether the evidence in front of the decision-maker justifies the conclusion reached, which is a subtly different 22 For criticisms in the light of E, see, e.g. Craig, ibid.; for criticisms of wider intervention in this sphere more generally see, e.g. Craig, fn.9 above, p.511; Beatson, fn.9 above. 23 ibid., at [79]. 24 Chevron USA, Inc v National Resources Defense Council, Inc 467 U.S. 837 (1984), but for criticism of this decision see, e.g. C.R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State (1989) 89 Columbia Law Review R. (on the application of Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] Imm.A.R The court held that it would be to stretch the principles identified by Carnwath L.J. in EandR impossibly far if it were to accede to the argument that the adjudicators had erred in this case. This was because the evidence in question concerned the risk facing members of an Afghanistan political party, on which an expert witness from S.O.A.S. and a Danish fact-finding mission had found conflicting information. Just as Craig predicted (fn.21 above), the court found that in this case it could not satisfy the second of Carnwath L.J. s requirements, that the truth could be uncontentiously established. It is true that it was the word established rather than uncontentious that the Court of Appeal in R. (on the application of Iran) felt was not fulfilled, but the principle remains the same; Craig was right to have identified the second condition as being the most difficult to fulfil. 27 Craig, fn.9 above, especially pp ibid., p.803. He does note that there will be relatively straightforward cases where this is not necessary, on which see further below, fn.46.

5 Reform of Jurisdictional Review of Error of Law and Fact 797 question. To ask whether there has been a proper evaluation of facts is not the same thing as to ask whether, on those facts, the decision-maker was entitled to draw the conclusion that it did. For this reason others take a narrower view of the implications of E, wishing to maintain the line between review of the definition of jurisdictional conditions such as vehicle and review of the fact-finding, evidentiary process. 29 Here, then, we have one potential division within the category of errors of fact, and on further analysis of the category, it appears that other distinctions can be drawn. Are all errors the same? In the skateboard example, or indeed in many of the decided cases, the problem is often that there is no absolute definition of the given jurisdictional term. Any phrase such as illegal entrant, 30 or substantial lessening of competition 31 could be defined in a number of ways. Given that this is so, in most circumstances 32 it is slightly odd to describe any definition of such a term as an error. We already know that the terms law, fact, jurisdictional and non-jurisdictional are simply flexible concepts that can be used to contain or even conceal more pragmatic reasoning, but we must accept that the same is true of the term error itself. A definition reached by a court as to any jurisdictional condition may be different from that reached by the initial decision-maker, but arguably it can only be an error if it falls short of an objective truth. The aim here is not to investigate the semantics of the term error, rather it is to do two things. The first is to reiterate that whenever a court reviews the definition given to a jurisdictional condition such as vehicle or illegal entrant, it is not detecting errors on the part of the initial decision-maker, but rather it is checking the exercise of a discretionary judgment by that decision-maker. The second aim is to distinguish these situations from those in which the decision-maker can truly be said to be mistaken because there is one right answer that it failed to reach. For example, a statute might provide that the rules to be applied to motorised vehicles must be dictated by their engine capacity, a matter of fact about which it is possible to be absolutely right or wrong. 29 e.g. M. Elliott, ed., Beatson, Matthews and Elliott s Administrative Law (3rd edn, Oxford University Press, 2005), p.71 classifies the case as allowing review of non-jurisdictional errors of fact. Under this scheme the court must first establish whether the issue is one of fact or law and having established that it is one of fact must ask itself whether that fact was jurisdictional or not. Should it then conclude that the error was non-jurisdictional, the decision in E would at that point provide a ground of review, but not before. This interpretation obviously renders E a much less significant decision. 30 Khawaja, fn.12 above. 31 R. v Monopolies and Mergers Commission Ex p. South Yorkshire Passenger Transport Authority [1993] 1 W.L.R Of course, if a person had been born in the UK and never left, it would indeed be objectively wrong to state that he or she was an illegal entrant to the UK, so in similar concrete circumstances it may be that objectively there is a right answer. However, when, conversely, we turn to look at the sort of cases that should be covered by the definition of illegal entrant, this is an issue on which more than one opinion could be taken.

6 798 Public Law It is possible that this is what is behind Carnwath L.J. s crucial requirement in E that the fact in question be existing, uncontentious and objectively verifiable, but it is submitted that in fact the requirement could be even more stringently applied than it was in that case. In E the Adjudicator and the Immigration Appeal Tribunal (IAT) had assumed that membership of the Muslim Brotherhood would not render the applicant liable to persecution were he to be returned home. Persecution of E in the future could not, however, be said to be existing, uncontentious or objectively verifiable at the time of the IAT or the Adjudicator s decisions. There may be a very high likelihood indeed of a particular event occurring, but as private lawyers well know, 33 an incorrect assessment of this chance is a misprediction, not a mistake. Again, this is not a matter of splitting linguistic hairs. Predictions, like the definition of illegal entrant or vehicle, require the exercise of discretion. At most a court can say that it disagrees with a prediction made by the decision-maker; it cannot literally say that that prediction was wrong until it is proved to be so by the passage of time. Cases containing examples of true error will thus inevitably be fairly rare, but there are examples that could fall into this category, such as Haile, 34 in which the decision-maker thought that the evidence given related to one body called the EPRF, when in fact the applicant was referring to a different body, the EPRP. Here again, there is one simple truth that the initial decision-maker failed to reach. Another example is Weaver v Price 35 in which the question was whether, for rating purposes, a particular field was located in the parish of Overton or Erbistock. At the time of the case it is possible that cartographic methods were not quite as accurate as they are now, but today at least it can surely be said that there is a right answer to the location of any field in the United Kingdom. The key point about all such cases is that once it is accepted that there is an objectively right answer to such a question, the concerns raised above about the level of intervention by the court vanish. We no longer have to worry about the court substituting its judgment for that of the decision-maker, because the correctness of the answer is independent of the entity pointing it out. If a decision-maker wrongly assesses an individual s age and fails to make a grant, it does not much matter who points that mistake out to it; the mistake is undeniable and must be corrected. In this category at least we have thus solved our problem of the standard of review and court intervention; when there is an objectively right answer that the decision-maker has failed to reach, the court can substitute the correct answer automatically. However, where there is no objectively right answer the court must accept that it is not detecting errors at all, rather it is reviewing the exercise of the initial decision-maker s discretion. This process will indeed require the court to 33 See, e.g. Kleinwort Benson v Lincoln CC [1999] 2 A.C. 349, especially Lord Lloyd (dissenting) at p R. (on the application of Haile) v Immigration Appeal Tribunal [2001] EWCA Civ 663; [2002] I.N.L.R A similar case may be R. (on the application of Ahmed (Naeem)) v Secretary of State for the Home Department [2004] EWCA Civ 552, especially Keene L.J. at [12], though this case could also be dealt with using the rules relating to evidence discussed below. 35 (1832) 3 B. & Ad. 409.

7 Reform of Jurisdictional Review of Error of Law and Fact 799 use rationality review, just as it does when it is reviewing the substantive result produced by the decision-maker through the exercise of its discretion. Unlike the right answers category, where the answer itself justifies the intervention, review of discretionary judgment requires the court to justify its control and to establish the precise level of that intervention in the usual way. At this stage various factors can be taken into account. Obviously, for example, if Parliament has clearly located the power to define a statutory term with one body rather than another, that will be the most important consideration, but even where this has not been done explicitly the courts should consider and articulate openly their own institutional competence relative to that of the original decision-maker. 36 For example, if, as in Pearlman v Keepers and Governors of Harrow School, 37 it is thought particularly important to have a consistent and thus centrally-determined definition of a particular statutory term, this will indicate that responsibility for defining that term should lie with the courts, rather than with several different original decision-makers. In other cases, the greater scientific, economic or other expertise of the original decision-maker will be such that the courts are relatively less well placed to define the statutory term. Thus in some cases the decision-maker s assessment of what is required to satisfy a jurisdictional condition will be allowed to stand unless that assessment is wholly irrational, while in other cases the court might intervene even in the absence of such outright irrationality. The point is that in each case the reviewing court accepts that it is engaging in rationality review and thus that it must openly consider and articulate these kinds of concerns, rather than hiding them behind an ex post facto label. Once a court has established in a particular case that it is entitled to intervene it will not, strictly speaking, be doing so on the basis that the original decision-maker was wrong, or in error, nor on the basis that the court s definition is objectively correct in the sense of being scientifically measurable, even though the court may well be tempted to frame its judgment in these terms. Rather the court will have intervened because, as between the competing definitions offered by the initial decision-maker and the court there are more factors (such as consistency, expertise etc.) in favour of the court s definition. Conversely when it decides not to intervene, this does not render the original decision inherently right in an objectively or scientifically verifiable way, it is simply that the court feels less well placed to offer a definition than was the original decision-maker. 36 From the substantive review sphere, see, e.g. Nottinghamshire CC v Secretary of State for the Environment [1986] A.C. 240, Lord Phillips M.R. in R. (on the application of Asif Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789; [2002] Q.B. 129 and R. v Ministry of Defence Ex p. Smith [1996] Q.B. 517, especially Sir Thomas Bingham M.R. at p.556. On the general matter of relative institutional and constitutional competence, see Irvine, Judges and Decision Makers: The Theory and Practice of Wednesbury Review [1996] P.L [1979] Q.B. 56, per Lord Denning.

8 800 Public Law Review of discretion rather than correction of error in existing case law Three cases in particular show the courts engaging in precisely this kind of rationality review. The first is South Yorkshire Transport 38 in which the court defined substantial as worthy of consideration for the purpose of the Act 39 and established that the relevant criteria for establishing this were size, character and importance. 40 Nevertheless, Lord Mustill went on to hold that: the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is only entitled to substitute its own opinion...if the decision is so aberrant that it cannot be classed as rational. 41 This is a clear case of rationality review in which the court established the basis and level of its intervention at each stage in reviewing the Monopolies and Mergers Commission s definition of a substantial lessening of competition. Similarly in R. v Hillingdon LBC Ex p. Puhlhofer 42 Lord Brightman held that: 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. 43 The third case is Dowty Boulton Paul v Wolverhampton Corp (No.2). 44 Here land could only be put to a new use if it was not required for its original purpose. Russell L.J. held that the court should not simply substitute its judgment for that of the decision-maker on this issue because it concerned: 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 local authority could possibly take. 45 The key point running through all these cases is that where there is no correct answer and thus no error, the courts must go through an additional stage of establishing the basis for and level of their intervention accordingly, recognising 38 South Yorkshire Transport, fn.31 above. 39 Per Lord Mustill, ibid., p ibid., p ibid., p [1986] A.C ibid., p [1976] Ch ibid., p.26.

9 Reform of Jurisdictional Review of Error of Law and Fact 801 that they are not detecting errors but reviewing discretion in the usual way. 46 In addition to this there are other cases in which the courts have used Wednesbury and rationality review as an alternative to a finding of precedent fact, on the basis that precedent fact would involve substitution of judgment. 47 The reasoning and terminology in these cases are different, 48 but their underlying concerns and ultimate results are very similar to those suggested here. Applying the distinction between correction of error and review of discretion However, if this distinction between automatic correction 49 of jurisdictional errors and rationality review of jurisdictional discretion is to be of any use in 46 A similar argument has been made by Endicott, fn.8 above, but the present argument differs in three important respects. Endicott s suggestion was that a question would be one of law (i.e. one into which at his time of writing, the court would intervene) if the law requires a particular answer (at p.317). However, it is clear that Endicott s first, clear case category is wider than the objectively verifiable category proposed here, because his category would include the term insulting. His argument develops from what he calls the Edwards v Bairstow [fn.13 above] doctrine (at p.306), and he specifically states that we can call this a reasonableness test, as the courts sometimes do, as long as we see that the sense in which the tribunal must act reasonably (if it is not to be held to have erred on a question of law) is that it does not apply when it clearly does. Endicott s argument does not, therefore, contain a category as narrow as the objectively verifiable category, but begins with the next stage up, where the courts intervene not because the right answer is objectively verifiable, but because in their assessment the answer reached was unreasonable. Similarly Endicott regards the law as requiring a particular answer when the court exercises its legal power to elaborate the law so as to require (or interprets the statutory standard to require) one answer (at p.318). Such cases would not belong in the objectively verifiable category either but would again be an example of rationality review. Finally, at the time of his writing the law still used the fact/law division to distinguish between circumstances in which the courts would intervene at all and those in which they would not. Now that it is arguable that the courts will intervene in all circumstances, the key is to distinguish between the different forms and levels of intervention; automatic correction of jurisdictional condition errors as opposed to rationality review of jurisdictional discretionary judgment. Similarly, as noted (fn.28 above), Craig identifies a difference between cases of relatively simple factual error and those where a test for review will be necessary. However, he would include Ex p. A (fn. 13 above) in the former category, whereas it is suggested here that that case belongs elsewhere. In addition, the argument here applies to errors of both fact and law and it proposes a particular means of distinguishing between the simple and the more contentious cases, whereas, as noted (fn.21 above), Craig argues that we should not be seeking to draw formal distinctions between different species of factual error. 47 See, e.g. Cakabay v Secretary of State for the Home Department (No.2) [1999] Imm.A.R. 176 in which anxious scrutiny rather than error of precedent fact was used to review the question whether an asylum claim was fresh or repetitious. Similarly inr. (on the application of Jones) v Mansfield DC [2003] EWCA Civ 1408; [2004] Env. L.R. 21 at [17] the question whether a project was likely to have significant effects on the environment was treated as an exercise of judgment reviewable on Wednesbury grounds, rather than as a precedent fact. 48 So, for example, in South Yorkshire, fn.31 above, the definition was regarded as being jurisdictional, it was just that there remained discretion for the decision-maker in its application. In Puhlhofer, fn.42 above, the existence of the discretion relating to accommodation rendered the term nonjurisdictional. However, if it is accepted that the term jurisdictional is essentially a synonym for reviewable, then the conclusion is the same in both cases and both support the point made here; that where there is no right or wrong answer to a question the decision-maker can never be regarded as having fallen into error and therefore the most the court can do is to intervene to correct an aberrant use of its discretion in the same way that it always can. 49 In the sense that the court can substitute the objectively correct answer for that of the decisionmaker automatically, without engaging in a prior investigation into relative institutional competence to decide whose view of a statutory term should be used.

10 802 Public Law practice, it must be possible to identify cases that fall into the right answers category. The first problem is that the category may be smaller than it at first appears and that there may well be questions on the borderline where it is difficult to say whether there is an absolutely right answer. 50 The term objectively verifiable will have to be interpreted narrowly if this category is to remain distinct, because otherwise there would be no means of distinguishing a minute degree of discretion in the definition of a particular condition from situations in which the degree of discretion is much greater. To take the example of bus passes for the over 60s, it is just possible to argue that a person born at 10 pm has not reached the age of 60 at 10 am on her 60th birthday. In order to maintain the distinctiveness of the right answer category it is thus possible to argue that such a case should fall outside it, though were the applicant to reapply the next day it would then be categorically possible to say that she was 60 and any conclusion to the contrary would by then be wrong in an objective sense. In practice this may make little difference; a conclusion that someone on her 60th birthday is not 60 may in any case be regarded as so irrational that it must in any case be struck down, but the point is that the process of doing this will be different. Once the court has accepted that the decision entails some discretion it will have to justify its own intervention, rather than being able to intervene automatically as it can in the right answer category. If this difference in the technique of review is not maintained in cases where it will not necessarily affect the substantive outcome, the result may be a blurring of the distinction and thus the technique used in cases which are more radically different from each other (such as engine capacity compared to illegal entrant, for example). We would then have a return to the old problematic system; courts potentially substituting their judgments automatically in all cases and no sensible means of distinguishing the cases in which that is acceptable from those in which they should potentially be more reticent. Conversely, it might be asked why the right answer cases could not all be dealt with under the heading of rationality review, rather than being separated off into their own category. There are two answers to this point. The conceptual answer is that there is no constitutional need for rationality review in such a case. The answer s correctness, as discussed above, is independent of the entity producing it, whereas rationality review is essentially a means of attributing competence between courts and initial decision-makers. In other words, rationality review is used to establish who decides, as well as what the decision should be. The pragmatic answer is that even if the two processes do not produce different outcomes, automatic imposition of the objectively correct answer is more straightforward for the court than engaging in the 50 Conversely it could also be argued (see, e.g. R. Dworkin, Law s Empire (Belknap Press, 1986), Chs 2, 3 and 5) and A Matter of Principle (Oxford University Press, 1986)) that the category is larger than it at first appears, since decisions can be right even if they are not ascertainable in a scientific sense, and involve the exercise of discretion, as long as this exercise of discretion provides the best fit with the existing constitutional structure. Discussion of such arguments is beyond the scope of the current investigation, but it is suggested that such cases should not fall into the objectively verifiable category, which should be confined to matters that are scientifically or factually measurable.

11 Reform of Jurisdictional Review of Error of Law and Fact 803 various stages of assessment in rationality review. Arguably this distinction in technique could be what the US Supreme Court was trying to establish in Chevron, 51 if unambiguously expressed Congressional intention is taken to mean an expression of a jurisdictional requirement to which there is only one correct answer. However, at least in more recent case law it appears that the Supreme Court is taking a wider view of unambiguous cases than this. Thus in Food and Drug Administration v Brown & Williamson Tobacco Corp 52 the Court held that the terms drug and drug delivery device could not include tobacco and the existence of a separate regulatory scheme for tobacco rendered this issue clear under Chevron. In the scheme suggested here, on the other hand, there is no right definition of either term and thus both would be subject to rationality review, albeit that the inclusion of tobacco might then be found to be unreasonable. Secondly, in some of the cases in which the statutory term is found to be clear enough to enable automatic intervention under Chevron, the question at issue is not exactly the definition of a jurisdictional condition, but the extent of discretion left to the decisionmaker at the stage of making the substantive decision. 53 Nevertheless, even if the line between the two Chevron categories is not to be drawn in the same way as that suggested here between the right answer and exercise of discretion categories, the existence of the Chevron rule still shows that there is some judicial support for having automatic substitution of judgment and rationality review as two distinct techniques open to the courts. Restructuring the current approach: a summary It is suggested, then, that this area of law should be restructured as follows. 1. First, the term jurisdictional should no longer be an ex post facto synonym for reviewable. In this sense there should be no distinction between jurisdictional and non-jurisdictional errors ; all errors would be prima facie reviewable 54 and the term jurisdictional should not be added when the court does intervene. 51 Chevron, fn.24 above. When a court reviews an agency s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute...rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency s answer is based on a permissible construction of the statute. (Stevens J., giving the opinion of the Court, at paras U.S. 120 (2000). 53 e.g. in ETSI Pipeline Project v Missouri 484 U.S. 495 (1988) the statute provided that if the Interior Secretary wished to remove water from an Army reservoir, he could only do so with the permission of the Army Secretary. Since this requirement was absolute the Court was able to hold that the removal of water without such permission involved an automatic excess of jurisdiction and rationality review was not required. 54 Subject to the usual limitations on judicial review, e.g. of justiciability (see, e.g. Lord Roskill in CCSU v Minister for the Civil Service [1985] A.C. 374).

12 804 Public Law 2. Secondly, we should also dispense with the distinction between issues of fact and issues of law, i.e. between the meaning of a term in the abstract and its application or not to a particular set of facts. Any such distinction is impossible to draw in practice (one s conception of the word vehicle cannot be totally divorced from the objects one thinks should be covered by that word) and arguably all such issues are in any case reviewable since E. 3. Thus instead of using the earlier, problematic terminology we should distinguish between three categories of case: 3. a) Where the definition of a statutory term has one correct meaning or application in fact and the decision-maker fails to reach that meaning or application, the court can intervene automatically and substitute its judgment for that of the decisionmaker (for example where a statute refers to engines with a particular capacity). This category could properly be described as containing jurisdictional errors in a literal sense; the decisionmaker has literally made a mistake in assessing whether the substance of the issue is within its jurisdiction. However, because of the unhappy history of the term jurisdictional we may prefer to call this category something like review of objectively verifiable errors in the assessment of jurisdiction b) Where the definition or application of a statutory term contains an element of discretion, either in the present (such as illegal entrant in Khawaja 56 ), or because it requires a prediction of future events (as in E itself), the court should interfere with the original decision only where the decision-maker s conclusion on that meaning or application was irrational or aberrant. Rationality is to be determined in the usual way, with the justifications for and level of intervention being articulated by the court on the usual basis of relative constitutional and institutional competence (see, e.g. Dowty Boulton Paul, South Yorkshire Transport and Ex p. Puhlhofer), discussed above. This category of cases should not be regarded as dealing with any kind of error, but should instead be referred to as concerning something like excess of jurisdictional discretion As noted above, this category would include cases such as Haile (fn.34 above) and Weaver v Price (fn.35 above). From Craig s list of six types of case (fn.21 above, pp ) it would thus include only some cases in category three, where the primary decision-maker factually misinterpreted or misunderstood evidence presented at the hearing (including the Haile case); category one, a simple factual finding made by the decision-maker is challenged as being incorrect, and some cases in category five, where the decision is made on certain factual assumptions and the applicant seeks to show, sometimes through the admission of fresh evidence, that these factual assumptions were mistaken, though not the E case, as discussed above, or Secretary of State for Education and Science Ex p. Tameside MBC (fn.14 above) used by Craig to exemplify the category. 56 Khawaja, fn.12 above. 57 Of Craig s six categories (see fn.55 above) this would include categories two ( more complex factual findings which require a greater degree of evaluative judgment ; some of categories three and

13 Reform of Jurisdictional Review of Error of Law and Fact c) The third category of cases are those in which the focus is not on the definition of a jurisdictional condition at all, but rather on the decision-maker s treatment of the evidence. The point to note about this category is that it need not relate solely to jurisdictional matters (i.e. to the definition or application of terms such as illegal immigrant or engine capacity ). It is equally possible for decision-makers to deal incorrectly with evidence in relation to other matters, such as the relevant considerations to be taken into account at the substantive stage of their decision. This suggests that it may well be desirable to separate such evidential matters from those concerning jurisdictional issues per se. 58 Within this third category three further subdivisions can then be made. 3. (c)(i) The first concerns cases such as R. v Criminal Injuries Compensation Board Ex p. A, 59 in which the Board simply failed to consider a piece of evidence. 60 Conversely, the decision-maker may have considered a piece of evidence from the wrong case. An example of this arose in the case of R. (on the application of Ahmed (Naeem)) v Secretary of State for the Home Department. 61 Here the appellant was a citizen of Pakistan, who spoke no Egyptian and did not come from there, yet in rejecting the appellant s asylum claim the immigration adjudicator had referred, inter alia to the appellant s having given evidence in Egyptian and having referred to warrants for his arrest in Egypt. As Keene L.J. puts it, these errors are so strange as to leave one wondering what was happening when the adjudicator wrote his determination. It is possible that he was confusing this appellant with another appellant or this case with another case. In either event that would be most worrying since the case largely turned...on the adjudicator s judgment of this particular appellant s credibility. 62 In many ways this is like the Haile case outlined above. However, in Haile the adjudicator was at least five (factual misinterpretation of evidence and mistaken factual assumptions revealed through fresh evidence, including E and Tameside) and six, (where the initial decision was made on certain general factual assumptions about, for example, the degree of risk faced by a certain category of persons, but these general assumptions are then modified in the light of later evidence ). 58 It was noted (fn.29 above) that Elliott does so in Beatson, Matthews and Elliott s Administrative Law. 59 Ex p. A, fn.13 above. 60 Craig s category four, see fn.55 above. 61 Ahmed (Naeem), fn.34 above. 62 ibid., at [12].

14 806 Public Law considering the right case and had simply confused the organisation referred to in that case with a different organisation. Such a mistake is a true error of fact as described above. In Ahmed (Naeem), however, it appears that the adjudicator had not simply made a mistake relating to one of the facts of the case, but rather seemed not to be considering Ahmed s case at all. Apparently he was referring instead to evidence from a different file altogether. Of course, such a mistake could be classed as an error of fact, but since the mistake occurs at a more fundamental level it is arguably better considered as a case in which the evidence has been treated incorrectly. 3. (c)(ii) The second concerns cases in which there seems to be no evidence at all to support the decisionmaker s conclusion on a particular issue. Thus in Reid v Secretary of State for Scotland, 63 although the court held on the facts that sufficient evidence had been established, Lord Clyde held that absence of evidence would constitute a legal deficiency and that the court should ask whether there was truly no evidence to support the conclusion that was reached. 64 Similarly, in Mahon v Air New Zealand Ltd 65 Lord Diplock held that a Royal Commissioner investigating the circumstances of an air accident must base his decision upon evidence that has some probative value. 66 Although they are often confused in the case law it is submitted that such cases should be distinguished from those in the next category: 3. (c)(iii) Cases in which there is evidence to support one conclusion, but the decision-maker has reached the opposite conclusion. This category also includes cases which do not fulfil the Air New Zealand requirements that the evidence must tend: logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory [1999] 2 A.C ibid., pp [1984] A.C ibid., p.820. See also Secretary of State for Social Security v Tait [1995] C.O.D. 440 and (unsuccessful) references to this ground in Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481 and R. v Governor of Brixton Prison Ex p. Armah [1968] A.C.192 per Lord Morris, dissenting, at pp Air New Zealand, fn. 65 above, per Lord Diplock at p.821.

15 Reform of Jurisdictional Review of Error of Law and Fact 807 The purpose of separating out these three further categories again relates to the appropriate standard and basis of review in each case. First, just like review of objectively verifiable error, there is no reason why a total failure to consider a piece of evidence as in Ex p. A, use of evidence relating to a different case, or failure to point to any evidence at all in favour of the decision, should not be met with strict, automatic review. There does not appear to be a need for the court to engage with rationality review of any kind in such cases. Indeed, it is clear from the similarity between the Haile and Ahmed cases that there may be a very fine line between cases in which the court has made a true error of fact in using the evidence and those in which it is not even using the right evidence in the first place. However, it may be significant that in Air New Zealand Lord Diplock regarded the mishandled evidence cases as belonging under the heading of natural justice, meaning that the focus is on the process of making the decision, rather than the substantive reasoning behind it. If that is the case, then there is a difference between the category of true error of fact cases including Haile and the category of mishandled evidence cases that includes Ahmed. First, as noted above, review of mishandled evidence may extend beyond jurisdictional issues, since the mishandled evidence may relate to a different ground of review. Secondly, if Lord Diplock is right that mishandled evidence cases belong under the natural justice heading, this opens the door to a whole other set of principles from that sphere such as, for example, the wealth of case law to establish what should happen when the breach of natural justice has made no difference to the substantive outcome. 68 Although there is thus a conceptual distinction between failing even to consider the right evidence and failing to make the right use of it, it would nevertheless be wise to align the rules for true error review with those of review of mishandled evidence as much as possible, so that in practice little should turn on the fine line distinguishing cases such as Haile from those in Ahmed (Naeem). Category 3(c)(iii), where the evidence is inconsistent with the decision reached, is a little more problematic. According to Lord Diplock s statement above, this category also belongs under the heading of natural justice 69 and the standard of review seems fairly weak; the courts must only see whether the evidence tends to show what the decision-maker thinks it does. The evidence need not be consistent with the decision reached, it apparently needs only to avoid being self-contradictory. It is certainly possible that such a general check could indeed be undertaken in reviewing the process adopted by the decision-maker as a whole. However, the importance of this category 68 See e.g. Malloch v Aberdeen Corp (No.1) [1971] 1 W.L.R. 1578; Cinnamond v British Airports Authority [1980] 1 W.L.R. 582;R. v Chief Constable of Thames Valley Police Ex p. Cotton [1990] I.R.L.R. 344; John v Rees [1970] Ch. 345, p.402; R. v Thames Magistrates Court Ex p. Polemis [1974] 1 W.L.R and Waite v UK (2003) 36 E.H.R.R. 54. See also D. Galligan, Procedural Fairness in Birks, ed., The Frontiers of Liability (Volume One) (Oxford University Press, 1994) and T. Allan, Procedural Fairness and the Duty of Respect (1998) 18 O.J.L.S The rest of the rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result. (fn.65 above, p.821).