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

Abstract

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.