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Administrative Law - Statutory Construction and Fact-Finding Summary
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Comprehensive summary/exam notes on statutory construction and fact-finding in Administrative Law. This document covers the distinction between jurisdictional and non-jurisdictional errors (including the process of getting rid of the distinction), the new approach following the case of Page and an ...

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  • October 6, 2024
  • 8
  • 2022/2023
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Statutory Construction and Fact-Finding
Main theme = expertise!
Statutory construction – courts have more expertise.
Justifies why depart in cases of university visitor and UT.
Fact-finding – administrative courts not set up for this.

1. Used to draw a distinction between jurisdictional and non-jurisdictional errors:
Jurisdictional/Non-Jurisdictional = the idea that courts could correct an
interpretation of a statute only where the error took the decision-making outside of its
jurisdiction.
e.g., Housing Act 1996 – Hotak v Southwark LBC, what does “vulnerable” mean.
Classify the term – if the term went to the jurisdiction of the public authority,
defined the very powers and duties of the public authority, took it to mean
that the court should determine.
BUT – if public authority has been tasked in determining what it
means, court cannot correct even if think it is wrong.
Did this to show deference to a public authority.
Right approach might depend on the public authority being reviewed.
Allowed the court to say that in certain circumstances the public
authority is better placed, so term it jurisdictional to give it leeway.
Problems in Practice:
Main = trying to nail down a criterion/test for determining which box the
court would put the term in.
Technical complexity and uncertainty.
Pearlman v Keepers and Governors of Harrow School – courts could
reach different conclusions about the same term.
“Structural alteration” – is central heating a structural
alteration – judges are completely split in CA.
Lord Denning wanted to get rid of distinction.
At the time, in 1960s, was a lot of critique of administrative law.
Was seen as one of the technical distinctions that was really constraining and
making area of law far too technical.
2. Getting rid of the distinction:
Anisminic v Foreign Compensation Commission & Another – involved Foreign
Compensation Act – set up a scheme for distributing money received by UK
government following international crises to distribute between citizens who were
affected by it.
Government created order that sets out criteria for distribution. Foreign
Compensation Commission receives applications, measures them against
these criteria and then decides whether to distribute.
Issue = when Gov drafted the order, it did so badly – as a result, there was a
big ambiguity about who had to be a British citizen when the company was
since owned by someone other than the claimant – “successor in title”.
Claimant sought a declaration from the court clarifying that the term meant
something other than what the FCC thought it meant.
Split court 4:1 in favour of this being a question for the court.
Main reason = had the FCC misconstrued the term, they would have
gone on to ask a question they were never authorised to ask, stepped
outside jurisdiction.
Following this, decades long argument about what Anisminic decided.
Traditional view (Endicott, Feldman, Bell) – did not actually itself abolish
the distinction.

, Nowhere in the case do you find the court saying that there is no
longer this distinction between jurisdictional and non-jurisdictional
errors.
Seems to be applying this distinction – the reason the FCC is open to
review is because if it did misconstrue the term, it stepped outside the
powers given to it – seem to be reasoning in language of the
distinction.
Lord Diplock – while the court didn’t formally abolish distinction, in
substance they enlarged the category of jurisdictional errors so broadly that in
effect have pushed the category of non-jurisdictional error off the table.
Judges wanted to get rid of the distinction – cannot just easily
override.
Anisminic = stepping-stone that judges seized upon.
R v Lord President of the Privy Council, ex parte Page – involved University Statutes
Unanimous HL saying that we no longer use the distinction in general terms.
No longer have to put in box – look at error of law generally.
3. New approach:
Starting point = Page:
Whenever a PA makes a legal error, that is jurisdictional and the courts can
intervene.
Correctness standard:
If question of construction arises, court takes it upon themselves to
decide what that term means.
BUT – few areas where courts have come across special bodies where the courts
have been prepared to show a bit more deference, give more leeway.
University visitor – Page:
University statutes are not part of general law of the land, not created
by Parliament – while courts have developed tools for interpreting
Parliament, courts don’t regularly interact with University statutes.
Concerns about speed and finality – would be undermined if court
engaged in too much JR of the decision.
There is a virtue in having university visitors resolve issues
and knowing that is where the issue ends, not another option.
Would crate uncertainty and great deal of expense and delay.
Retained for this area jurisdictional and non-jurisdictional errors.
Don’t see many – for student disputes, role of university visitor has
been abolished and new body is subject to full JR – only retained for
staff disputes.
Very small amendment in terms of case numbers.
Upper Tribunal – much more substantive.
Jones – dealing with scenario where UT has resolved a question,
somebody then appeals to CA.
Didn’t really raise issue in a major way – specific issue
dealing with “crime of violence” term.
Lord Hope/Carnwath – made broader observations.
Major theme = importance of recognising expertise of UT.
Strongly emphasised that this is a body staffed with
lawyers who are experts in their own field, should be
borne in mind when CA is engaging in these appeals.
Suggestion is that when the court is deciding what it wants to
count as law and therefore a question for CA to intervene
with or fact, should bear in mind relative institutional
expertise.
Lord Hope: “a pragmatic approach should be taken
to the dividing line between law and fact, so that the

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