“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”
“The decisions of the Tribunal (including any decisions as to their jurisdiction) shall not be subject to appeal or liable to be questioned in any court.”
“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.”
“The main purpose of the Act is to ensure that the relevant investigatory powers are used in accordance with human rights. These powers are: the interception of communications; the acquisition of communications data (eg billing data); intrusive surveillance (on residential premises/in private vehicles); covert surveillance in the course of specific operations; the use of covert human intelligence sources (agents, informants, undercover officers); access to encrypted data.”
“(2) The jurisdiction of the tribunal shall be - (a) to be the only appropriate tribunal for the purposes ofsection 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section; (b) to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the tribunal is the appropriate forum; (c) to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue Page 5 of section 17, on his relying in, or for the purposes of, any civil proceedings on any matter; and (d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.”
“The Tribunal shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.”
“whether, if the Second Respondent (‘GCHQ’) carries on the activity which is described as CNE (Computer Network Exploitation), which may have affected the claimants, it has been lawful.”
“to hold open inter partes hearings, without possible damage to national security, while preserving, where appropriate, the respondents’ proper position of Neither Confirmed Nor Denied (‘NCND’).”
“… where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied.”
“… no court can be intended exempt from the superintendency of the King in this Court of King’s Bench. It is a consequence of every inferior jurisdiction of record, that their proceedings be removable into this court, to inspect the record, and see whether they keep themselves within the limits of their jurisdiction;”
“where they concern themselves with any matter not within their jurisdiction … or if in handling matters clearly within their cognizance they transgress the bounds prescribed to them by the laws of England … else the same question might be determined different ways, according to the court in which the suit is depending: an impropriety which no wise government can or ought to endure, and which is, therefore, a ground of prohibition.”
“… the clause which takes away the certiorari does not preclude our exercising a superintendence over the proceedings, so far as to see that what is done shall be in pursuance of the statute. The statute cannot affect our right and duty to see justice executed: and, here, I am clearly of opinion that justice has not been executed.”
“Subjection ... to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it: it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure - such a tribunal would be autocratic, not limited - and it is immaterial whether the decision of the inferior tribunal on the question of the existence or nonexistence of its own jurisdiction is founded on law or fact …” (Emphasis added)
“The courts, when they decide that a ‘decision’ is a ‘nullity’, are not disregarding the preclusive clause. For, just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so, as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed ... In each task they are carrying out the intention of the legislature, and it would be misdescription to state it in terms of a struggle between the courts and the executive. What would be the purpose of defining by statute the limit of a tribunal’s powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed?”
“The courts from the 16th to the 20th century used either the collateral fact doctrine or the theory of limited review to determine the extent of control. Both theories were premised on a distinction between jurisdictional and non-jurisdictional issues, although they drew the divide differently. The assumption was that a jurisdictional error of law was reviewable, but a non-jurisdictional error of law was not, unless the error of law was on the face of the record. The divide between jurisdictional and non-jurisdictional error was, however, always fraught with difficulty … The modern approach, which dates from the latter part of the 20th century, rejected the jurisdictional/non-jurisdictional divide. The starting assumption is that all errors of law are subject to judicial review and that the reviewing court will substitute judgment for that of the primary decision-maker on such issues. This approach avoids the difficulties of the jurisdictional/nonjurisdictional divide. There are, however, difficulties with the modern approach. It is based on the twin assumptions that reviewing courts should substitute judgment on all such legal issues and that this is the only way to maintain control over the organs of the administrative state. The courts have more recently signalled variation in the test for review primarily in the context of decisions made by tribunals.”
“… the courts will respect all acts of the executive within its lawful province, and … the executive will respect all decisions of the courts as to what its lawful province is.”
“… the conceptually different question of what the attitude of the courts is and should be, to the entirely separate category of cases where there are ouster clauses protecting the exercise of judicial functions.”
“Nor does Anisminic assist A. The ouster clause there under consideration purported to remove any judicial supervision of a determination by an inferior tribunal as to its own jurisdiction. Section 65(2)(a) does no such thing. Parliament has not ousted judicial scrutiny of the acts of the intelligence services; it has simply allocated that scrutiny (as to section 7(1)(a) HRA proceedings) to the IPT ...”
“Anisminic decided to challenge the provisional determinations in an action in the High Court seeking various declarations to the effect that they were erroneous in law and nullities. Unlike an application for certiorari, this did not require the court's leave, which would almost certainly have been refused because Anisminic was unable to point to any evidence that the Commission had erred in law. The action compelled the Commission to plead its defence, which eventually disclosed an error of law. There were disadvantages to Anisminic in pursuing a declaration rather than certiorari. First, there was no precedent for using a declaration as a remedy in such a case; the Commission argued that allowing declarations to be used in that way might make certiorari redundant … Secondly, it forced Anisminic to argue that any unlawfulness the company could assert made the determination void, not merely voidable, as a voidable determination would be effective unless quashed by certiorari …”
“The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that ‘determination’ means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if you seek to show that a determination is a nullity you are not questioning the purported determination-you are maintaining that it does not exist as a determination. It is one thing to question a determination which does exist: it is quite another thing to say that there is nothing to be questioned.”
“It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word ‘jurisdiction’ has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted Page 23 to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly …”
“But if, on a true construction of the Order, a claimant who is an original owner does not have to prove anything about successors in title, then the commission made an inquiry which the Order did not empower them to make, and they based their decision on a matter which they had no right to take into account … … if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that - not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal. … they are doing something which they have no right to do and, if the view which I expressed earlier is right, their decision is a nullity …”
“In every case, whatever the character of a tribunal, however wide the range of questions remitted to it, however great the permissible margin of mistake, the essential point remains that the tribunal has a derived authority, derived, that is, from statute: at some point, and to be found from a consideration of the legislation, the field within which it operates is marked out and limited.”
“As … all these conditions were fulfilled to the satisfaction of the commission, the appellants’ claim was in law established; the commission by seeking to impose another condition, not warranted by the Order, was acting outside its remitted powers and made no determination of that which alone it could determine.”
“The ratio of the House of Lords decision was relatively narrow …, but what landmark cases decide and what they are later regarded as authority for may be very different.”
“Lord Reid leapt, apparently without noticing, from uncontroversial general propositions about circumstances in which certiorari would be available to quash a decision in the absence of any provision excluding the court’s jurisdiction, to a judgment about the effect of a very particular sort of error (denying eligibility for compensation for failing to comply with a condition which the legislation had not imposed) in a case where, because a declaration rather than certiorari was sought and, because of the effect of section 4(4) of the 1950 Act, it was essential to show that the challenged determination was not merely erroneous but null.”
“The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported ‘determination’, not being a ‘determination’ within the meaning of the empowering legislation, was accordingly a nullity.”
“Anisminic … rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires. Thenceforward it was to be taken that Parliament had only conferred the decisionmaking power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires.”
“The Anisminic decision established, contrary to previous thinking that there might be error of law within jurisdiction, that there was a single category of errors of law, all of which rendered a decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. An ultra vires act or subordinate legislation is unlawful simpliciter and, if the presumption in favour of its legality is overcome by a litigant before a court of competent jurisdiction, is of no legal effect whatsoever.”
“The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires.”
“Over the last 40 years its scope has developed dramatically. It has grown from being little more than a method of correcting the errors of law of inferior courts to its present eminence as the remedy for protecting individuals against unlawful action by the Government and other public bodies. In the early 1970s this was the staple diet of the Divisional Court of the Bench Division of the High Court. This Court alone had the power to grant the prerogative remedies of certiorari, mandamus and prohibition. The importance attached to this power was demonstrated by the fact that the Divisional Court was usually presided over by the Lord Chief Justice of the day sitting with two other High Court Judges. The Court had direct historical links to the role of the High Court Judges of the Queen’s Bench Division who, from the Middle Ages, exercised the authority of the monarch to keep the peace and uphold law and order. The prerogative writs together with inherent jurisdiction derived from their association with the monarch gave them wide discretionary powers. Those powers still play a role in claims for judicial review today. As a result of reforms in 1979, in addition to the prerogative orders being available to the judges of the new Court, the judges hearing cases on the ‘Crown Office List’ (the progenitor of the Administrative Court created in 2000) were also able to grant the declarations and injunctions which were the tools used by the judges of the Chancery Division when supervising the activities of public bodies. Declarations and injunctions, like the prerogative orders, were discretionary remedies. The powers to provide both sets of remedies meant that judicial review became a very effective method of upholding the rights of the individual against public bodies. This also meant that the technicalities relating to the grant of the prerogative remedies receded in importance.”
“But there is no similar presumption that where a decisionmaking power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption …”
“The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. … Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. 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; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.”
“The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.”
“I am, I fear, unable to see how that determination, assuming it to be an erroneous determination, can properly be said to be a determination which he was not entitled to make. The judge is considering the words in the Schedule which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All he has done is to come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law.”
“So far as the Employment Appeal Tribunal is concerned, it is a superior court of record against which judicial review simply does not lie.”
“The Administrative Court will have no role at all in relation to decisions of the Upper Tribunal, which as [a] superior court of record falls entirely outside the supervisory jurisdiction.”
“It has been repeatedly followed in this court ever since and never disputed by any Minister. So it is the accepted interpretation …”
“The distinction between jurisdictional and non-jurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as the courts rightly insist that all administrative action should be simply, lawful, whether or not jurisdictionally lawful.” (De Smith para 4-054) The same passage in a previous edition was cited with approval by Lord Dyson in Cart para 111, who described the distinction between jurisdictional error and other error as “artificial and technical”
“… the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law - that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise. Both tribunals and the courts are there to do Parliament’s bidding. But we all make mistakes. No-one is infallible …”
“First, we could accept the view of the courts below in the Cart and MR (Pakistan) cases that the new system is such that the scope of judicial review should be restricted to pre-Anisminic excess of jurisdiction and the denial of fundamental justice (and possibly other exceptional circumstances such as those identified in the Sinclair Gardens case[2006] 3 All ER 650 ). Second, we could accept the argument, variously described in the courts below as elegant and attractive, that nothing has changed. Judicial review of refusals of leave to appeal from one tribunal tier to another has always been available and with salutary results for the systems of law in question. Third, we could adopt a course which is somewhere between those two options … namely that judicial review in these cases should be limited to the grounds upon which permission to make a second-tier appeal to the Court of Appeal would be granted.” (para 38) Earlier in the judgment (para 27) she had recorded that the Lord Chancellor had exercised the power under section 13(6) to apply the “second-appeal” criteria as already applied in the Court of Appeal, to the effect that permission shall not be granted unless: “(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant appellate court to hear the appeal.”
“a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected.”
“My initial inclination was to treat the new two-tier tribunal system as wholly self-sufficient. It is under the presidency of a judge who is likely to be a member of the Court of Appeal, and High Court judges can and will sit in the Upper Tribunal. There is considerable flexibility in the system in relation to the administration and composition of the Upper Tribunal. Can it not be left to the Senior President, in consultation with the President of the Queen’s Bench Division and other judicial colleagues to ensure that the tribunal judiciary is so deployed as to ensure the appropriate degree of judicial scrutiny of decisions of the lower tier?”
“The fact that Parliament did not accept the recommendation to exclude judicial review of unappealable decisions of the Upper Tribunal does not mean that it rejected the committee’s view that there had been a significant change in the structure of the tribunal system such as might justify a reappraisal of the scope of the judicial review jurisdiction. … It merely means that Parliament was not willing to adopt the controversial suggestion that judicial review should be excluded altogether.” (para 118) He referred to the Government White Paper: Transforming Public Services: Complaints, Redress and Tribunals presented to Parliament in July 2004 (Cm 6243), which (at para 7.28) had described “complete exclusion of the courts from their historic supervisory role (as) a highly contentious constitutional proposition”
“the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.”
“Subsections (1) and (2) - (a) prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of - (i) lack of jurisdiction, (ii) irregularity, (iii) error of law, (iv) breach of natural justice, or (v) any other matter …”
“… that denominating some questions as ‘jurisdictional’ is almost entirely functional: it is used to validate review when review is felt to be necessary. … If it is understood that the word ‘jurisdiction’ is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified.”
“The rule of law This Act does not adversely affect - (a) the existing constitutional principle of the rule of law …”
“The control cannot … be exercised if there is some provision (such as a ‘no certiorari’ clause) which prohibits removal to the High Court. But it is well settled that even such a clause is of no avail if the inferior tribunal acts without jurisdiction or exceeds the limit of its jurisdiction.”
“What would be the purpose of defining by statute the limit of a tribunal’s powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed?”
‘the position may be reached, as the result of statutory provisions, that even if they make what the courts might regard as decisions wrong in law, these are to stand.’
“It is now well established that specialised tribunals may, depending on their nature and on the subject-matter, have the power to decide questions of law, and the position may be reached, as the result of statutory provision, that even if they make what the courts might regard as decisions wrong in law, these are to stand. The Foreign Compensation Commission is certainly within this category; its functions are predominantly judicial; it is a permanent body, composed of lawyers, with a learned chairman. and there is every ground, having regard to the number and the complexity of the cases with which it must deal, for giving a wide measure of finality to its decisions. There is no reason for giving a restrictive interpretation to section 4(4) which provides that its ‘determinations’ are not to be ‘called in question’ in courts of law.”
“The Tribunal shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.”
“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”
“The decisions of the Tribunal (including any decisions as to their jurisdiction) shall not be subject to appeal or liable to be questioned in any court.”
“… the landmark decision of this House in Anisminic Ltd v Foreign Compensation Commission … , and particularly the leading speech of Lord Reid, which has liberated English public law from the fetters that the courts had theretofore imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction. The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported ‘determination,’ not being a ‘determination’ within the meaning of the empowering legislation, was accordingly a nullity.”
“Since Anisminic, the requirement that an error of law within the jurisdiction must appear on the face of the record is now obsolete. It follows that today, in principle, inferior courts as well as tribunals are amenable to the supervisory jurisdiction of the High Court under sections 29 and 31 of theSupreme Court Act 1981 .”
“The interpreter’s role cannot be filled by the legislature or the executive: for in that case they or either of them would be judge Page 66 in their own cause, with the ills of arbitrary government which that would entail. Nor, generally can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision-makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts’ application, and authoritative-accepted as the last word, subject only to any appeal. Only a court can fulfil the role.”
“To offer the same guarantee of properly mediated law, any alternative source must amount to an alter ego of the High Court; …”
“The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all courts and tribunals, when faced with the same point of law should decide it in the same way.”
“It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly - meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.”
“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”
“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.”
“It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word ‘jurisdiction’ has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. … It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I understand that some confusion has been caused by my having said in R v Governor of Brixton Prison, Ex p Armah[1968] AC 192 , 234 that if a tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if one uses ‘jurisdiction’ in the narrow original sense. If it is entitled to enter on·the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law …”
“If, on a true construction of the Order, a claimant who is an original owner does not have to prove anything about successors in title, then the commission made an inquiry which the Order did not empower them to make, and they based their decision on a matter which they had no right to take into account. If one uses the word ‘jurisdiction’ in its wider sense, they went beyond their jurisdiction in considering this matter. … It cannot be for the commission to determine the limits of its powers … if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that - not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal. If they base their decision on some matter which is not prescribed for their adjudication, they are doing something which they have no right to do and, if the view which I expressed earlier is right, their decision is a nullity.”
“In all cases similar to the present one it becomes necessary, therefore, to ascertain what was the question submitted for the determination of a tribunal. What were its terms of reference? What was its remit? What were the questions left to it or sent to it for its decision? What were the limits of its duties and powers? Were there any conditions precedent which had to be satisfied before its functions began? If there were, was it or was it not left to the tribunal itself to decide whether or not the conditions precedent were satisfied? If Parliament has enacted that provided a certain situation exists then a tribunal may have certain powers, it is clear that the tribunal will not have those powers unless the situation exists. The decided cases illustrate the infinite variety of the situations which may exist and the variations of statutory wording which have called for consideration. Most of the cases depend, therefore, upon an examination of their own particular facts and of particular sets of words. It is, however, abundantly clear that questions of law as well as of fact can be remitted for the determination of a tribunal.”
“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper inquiry the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which·Parliament did direct. Any of these things would cause its purported decision to be a nullity … The courts have, however, always been careful to distinguish their intervention whether on excess of jurisdiction or error of law from an appellate function. … If the tribunal is intended on a true construction of the Act to inquire into and finally decide questions within a certain area, the courts’ supervisory duty is to see that it makes the authorised inquiry according to natural justice and arrives at a decision whether right or wrong. They will intervene if the tribunal asks itself the wrong questions (that is, questions other than those which Parliament directed it to ask itself). But if it directs itself to the right inquiry, asking the right questions, they will not intervene merely because it has or may have come to the wrong answer, provided that this is an answer that lies within its jurisdiction.”
“It is now well established that specialised tribunals may, depending on their nature and on the subject-matter, have the power to decide questions of law. and the position may be reached, as the result of statutory provision, that even if they make what the courts might regard as decisions wrong in law, these are to stand. The Foreign Compensation Commission is certainly within this category; its functions are predominantly judicial; it is a permanent body, composed of lawyers, with a learned chairman, and there is every ground having regard to the number and the complexity of the cases with which it must deal, for giving a wide measure of finality to its decisions. There is no reason for giving a restrictive interpretation to section 4(4) which provides that its ‘determinations’ are not to be ‘called in question’ in courts of law. In every case, whatever the character of a tribunal, however wide the range of questions remitted to it, however great the permissible margin of mistake, the essential point remains that the tribunal has a derived authority, derived, that is, from statute: at some point, and to be found from a consideration of the legislation, the field within which it operates is marked out and limited. There is always an area, narrow or wide, which is the tribunal’s area; a residual area, wide or narrow, in which the legislature has previously expressed its will and into which the tribunal may not enter. Equally, though this is not something that arises in the present case, there are certain fundamental assumptions, which without explicit restatement in every case, necessarily underlie the remission of power to decide such as (I do not attempt more than a general reference, since the strength and shade of these matters will depend upon the nature of the tribunal and the kind of question it has to decide) the requirement that a decision must be made in accordance with principles of natural justice and good faith. The principle that failure to fulfil these assumptions may be equivalent to a departure from the remitted area must be taken to follow from the decision of this House in Ridge v Baldwin[1964] AC 40 . Although, in theory perhaps, it may be possible for Parliament to set up a tribunal which has full and autonomous powers to fix its own area of operation, that has, so far, not been done in this country. The question what is the tribunal’s proper area is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality, or unquestionability upon its decisions. These clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal. They may, according to the width and emphasis of their formulation, help to ascertain the extent of that field, to narrow it or to enlarge it, but unless one is to deny the statutory origin of the tribunal and of its powers, they cannot preclude examination of that extent. It is sometimes said, the argument was presented in these terms, that the preclusive clause does not operate on decisions outside the permitted field because they are a nullity. There are dangers in the use of this word if it draws with it the difficult distinction between what is void and what is voidable, and I certainly do not wish to be taken to recognise that this distinction exists or to analyse it if it does. But it may be convenient so long as it is used to describe a decision made outside the permitted field, in other words, as a word of description rather than as in itself a touchstone.”
“The extent of the interpretatory power conferred upon the tribunal may sometimes be difficult to ascertain and argument may be possible whether this or that question of construction has been left to the tribunal, that is within the tribunal’s field, or whether, because it pertains to the delimitation of the tribunal’s area by the legislature, it is reserved for decision by the courts. … Sometimes, it will be possible to form a conclusion from the form and subject-matter of the legislation. … I think that we have reached a stage in our administrative law when we can view this question quite objectively, without any necessary predisposition towards one that questions of law or questions of construction, are necessarily for the courts. In the kind of case I have mentioned there is no need to make this assumption. In another type of case it may be apparent that Parliament is itself directly and closely concerned with the definition and delimitation of certain matters of comparative detail and has marked by its language the intention that these shall accurately be observed.”
“the question of the availability of judicial review instead of appeal as a means of correcting mistakes of law made by a court of law as distinct from an administrative tribunal or other administrative authority, however described, when it is exercising quasi-judicial functions.”
“proceeds on the presumption that where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined.”
“I am, I fear, unable to see how that determination, assuming it to be an erroneous determination, can properly be said to be a determination which he was not entitled to make. The judge is considering the words in the Schedule which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All he has done is to come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law. Accordingly, I take the view that no form of certiorari is available to the tenant.”
“The Court of Appeal in Northern Ireland is a superior court, but the underlying question of construction remains, whether the legislature has by article 61(7) of the 1980 Order, set out in para 63 above, excluded any right of appeal in circumstances such as the present. Article 61(1) and (7), read together, provide for the decision of the Court of Appeal on a case stated relating to the correctness of ‘the decision of a county court judge upon any point of law’ to be final. They contemplate the finality of the Court of Appeal’s decision with regard to the correctness of the county court judge’s decision on the point of law raised by the case stated. The finality provision in article 61(7) is therefore focused on the decision on the point of law, not on the regularity of the proceedings leading to it. It would require much clearer words - and they would, clearly, be unusual and surprising words - to conclude that a focused provision like article 61(7) was intended to exclude a challenge to the fairness or regularity of the process by which the Court of Appeal had reached its decision on the point of law. Suppose the Court of Appeal had refused to hear one side, or the situation was one where some apparent bias affected one of its members. This sort of situation cannot have been contemplated by or fall within article 61(7).”
“37. The principle I have suggested has its genesis in the selfevident fact that legislation consists in texts. Often - and in every case of dispute or difficulty - the texts cannot speak for themselves. Unless their meaning is mediated to the public, they are only letters on a page. They have to be interpreted. The interpreter’s role cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail. Nor, generally, can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision-makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts’ application, and authoritative - accepted as the last word, subject only to any appeal. Only a court can fulfil the role. 38. If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament’s law, requires that none of these things happen. Accordingly, as it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament’s sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament’s statutes are always effective; that is another. 39. As I have said, the paradigm for such an authoritative source is the High Court, which is independent of the legislature, the executive, and any other decision-makers acting under the law; and is the principal constitutional guardian of the rule of law. In section IV(2)(a) below I discuss the historic primacy of the High Court’s predecessor, the Court of King’s Bench. To offer the same guarantee of properly mediated law, any alternative source must amount to an alter ego of the High Court; and indeed there are instances where the authoritative source is another court, such as the Courts-Martial Appeal Court and the Restrictive Practices Court: see the reference, at para 71, below to R v Cripps, Ex p Muldoon[1984] QB 68 . But the general principle is clear. The rule of law requires that statute should be mediated by an authoritative and independent judicial source; and Parliament’s sovereignty itself requires that it respect this rule.”
“78. The answer to these questions requires a closer look at what I have described as the overriding foundation for the grant of judicial review: an excess of jurisdiction by the subject court. This concept possesses (at least) two different meanings. The first denotes the case where a court travels into territory where it has no business. Thus a court whose jurisdiction is limited to claims of a pleaded value of£5,000 or less would exceed its jurisdiction if it entertained a claim pleaded at£10,000 ; or if it adjudged a suit arising in Derbyshire though its jurisdiction was limited to County Durham. The second meaning of excess of jurisdiction denotes the case where, acting within the field ascribed to it, the court gets the law wrong. The first of these meanings is almost always unproblematic. The territory of a court's jurisdiction conferred by statute will depend, plainly, on the terms of the statute. (The same is of course true of the reach of executive power conferred by statute on a minister or other public decision-maker.) The territory’s edge will usually be sharp enough. 79. But the second meaning of excess of jurisdiction has given rise to more difficulty. A court acts in excess of jurisdiction by getting the law wrong if it is not the final judge (subject to any statutory appeal) of the law it has to apply. If it is not, it exceeds its jurisdiction if it makes a legal error, and in that case the High Court as successor to the King’s Bench may issue a certiorari (nowadays, a quashing order) to correct the error. By contrast if the court in question is the last judge of the applicable law (subject as I have said to any right of appeal) it will not exceed its jurisdiction by perpetrating a legal error, and the High Court will have no corrective or supervisory role. … 81. We may see, then, that the question whether SIAC or UT is amenable to the judicial review jurisdiction has more than one layer. (1) Is either body reviewable for excess of jurisdiction in the first sense of the term (transgression beyond the boundaries of its permitted subject matter)? (2) Is either reviewable for excess of jurisdiction in the second sense, as being liable to correction for error of law, albeit committed within those proper boundaries? Or is it a court possessing the final power (subject to appeal) to interpret for itself the law it must apply?”
“36. It seems to us that there is a true jurisprudential difference between an error of law made in the course of an adjudication which a tribunal is authorised to conduct and the conducting of an adjudication without lawful authority. Both are justiciable before the UT if committed by the FTT, but if committed by the UT will go uncorrected unless judicial review lies. The same of course is true of errors of law within jurisdiction; but these, in our judgment, reside within the principle that a system of law, while it can guarantee to be fair, cannot guarantee to be infallible. Outright excess of jurisdiction by the UT and denial by it of fundamental justice, should they ever occur, are in a different class: they represent the doing by the UT of something that Parliament cannot possibly have authorised it to do. 37. Thus if for some reason the UT made an order giving a money judgment which it had no power to give, with the possibility of enforcement under its section 25 powers, it would be inimical to the rule of law if the High Court could not step in, should the appellate system for some reason not do so. Similarly if a member of the UT were to sit when ineligible or disqualified by a pecuniary interest, or if the UT conducted a hearing so unfairly as to render its decision a nullity, the High Court ought to be able to quash the determination. We do not mean this list to be exhaustive but to be illustrative of the kind of error, rare as it will be, which would take the UT outside the range of its decision-making authority. Such a division is, we consider, one of legal principle which can properly form the basis of judicial policy. It applies only to the UT, since it is the role of the UT itself to correct errors of every kind, including outright excesses of jurisdiction and fundamental denials of justice, in the FTT.”
“Prima facie, judicial review should be available to challenge the legality of decisions of public bodies. Authority is not needed (although much exists) to show that there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review. But the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law. The status and functions of the Upper Tribunal to which I have already referred are important here.”
“(2) The jurisdiction of the Tribunal shall be - (a) to be the only appropriate tribunal for the purposes ofsection 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section; (b) to consider and determine any complaints made to them which, in accordance with subsection (4) are complaints for which the Tribunal is the appropriate forum; (c) to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 17, on his relying in, or for the purposes of, any civil proceedings on any matter; and (d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.”
“(2) Where the Tribunal hear any proceedings by virtue of section 65(2)(a), they shall apply the same principles for making their determination in those proceedings as would be applied by a court on an application for judicial review. (3) Where the Tribunal consider a complaint made to them by virtue of section 65(2)(b), it shall be the duty of the Tribunal - (a) to investigate whether the persons against whom any allegations are made in the complaint have engaged in relation to - (i) the complainant, (ii) any of his property, (iii) any communications sent by or to him, or intended for him, or (iv) his use of any postal service, telecommunications service or telecommunication system, in any conduct falling within section 65(5); (b) to investigate the authority (if any) for any conduct falling within section 65(5) which they find has been so engaged in; and (c) in relation to the Tribunal’s findings from their investigations, to determine the complaint by applying the same principles as would be applied by a court on an application for judicial review.”
“statutory measures which confide the jurisdiction to a judicial body of like standing and authority to that of the High Court, but which operates subject to special procedures apt for the subject matter in hand, may well be constitutionally inoffensive. The IPT ... offers ... no cause for concern on this score.”
“whether, and, if so, in accordance with what principles, Parliament may by statute ‘oust’ the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction.”
“… the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme … Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen.”
“… it does of course lie within the power of Parliament to provide that a tribunal of limited jurisdiction should be the ultimate interpreter of the law which it has to administer: ‘the position may be reached, as the result of statutory provisions, that even if they make what the courts might regard as decisions wrong in law, these are to stand.’ But there is no such provision in the 2007 Act. There is no clear and explicit recognition that the Upper Tribunal is to be permitted to make errors of law.”
“… or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction [and] would cause its purported decision to be a nullity.”
“The decisions of the Tribunal (including any decisions as to their jurisdiction) shall not be subject to appeal or liable to be questioned in any court.”
“This subsection will be of interest. It is intended to and appears to be effective in making the Tribunal decisions wholly judge-proof. The reference to ‘jurisdiction’ excludes even the Anisminic line of argument.”
“Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. 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; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.”
“… the only circumstances in which the court can correct what is to my mind the error of the judge is if he was acting in excess of his jurisdiction as opposed to merely making an error of law in his judgment …”
“… the IPT, as the only tribunal with jurisdiction to obtain and review ‘below the waterline’ [ie closed] material, is not only the sole body capable of elucidating the general operation of a surveillance regime: it is also the sole body capable of determining whether that regime requires further elucidation.”