When is an Error Not an Error? Reform of Jurisdictional Review of Error of Law and Fact
Public Law, p. 793, 2007
27 Pages Posted: 7 Jul 2008
Over the past 30 years judicial review of jurisdictional error has changed dramatically, from the decisions in Anisminic v Foreign Compensation Commission and R. v Lord President of the Privy Council Ex p. Page, through to the recent decision in E v Secretary of State for the Home Department. 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? The paper proposes that in order to answer this question the law should regard cases as falling into one of three different categories; true jurisdictional error in which the decision-maker genuinely failed to find an objectively right answer which exists independently of the body supplying it; review of judicial discretion in which the definition of a statutory term such as 'risk' or 'unreasonable' is at the discretion of the decision-maker and those in which the decision-maker has failed to handle the evidence correctly as a matter of procedure, for example, by failing to look at a particular document.
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By Linda Jellum