March 20

Thomas Adams: A Puzzle from Anisminic

One of the reasons why Anisminic is such a thought-provoking case is that it appears to contain a contradiction. On the one hand, received wisdom has it that the court abolished ‘the old distinction between errors of law that [go] to jurisdiction and errors of law that [do] not.’ But, on the other hand, no judge in the case came close to saying as much and several went as far as to reaffirm the importance of the distinction. Lord Morris, for example, argued that ‘if any errors of law are made in deciding matters which are left to a tribunal… such errors will be errors within jurisdiction’ and Lord Wilberforce thought it important to mark the difference between an administrative body ‘doing something which is not [within its] area and doing something wrong within that area.’ It was only errors of the former kind that he considered to be jurisdictional. Viewed with these two aspects in mind, then, Anisminic might seem inconsistent with itself.

In what follows I aim to show why this tension is more apparent than real. Anisminic, I will argue, did not abolish the distinction between jurisdictional and non-jurisdictional errors of law because there is no such distinction. What the judges did in that case was to demonstrate the illusory nature of the divide, to show why any mistake in interpreting the conditions on the power of an administrative body is a jurisdictional mistake. As such, the attempt on the part of several members of the court to endorse the distinction features not as a doctrinal affirmation—an affirmation which would indeed be in tension with the general principle which the case stands for—but instead as a conceptual mistake, one which subsequent courts have done well to avoid. In closing, I will say something about the nature of the jurisdictional debate and about possibilities for judicial deference post-Anisminic.

How, then, did the court reveal the illusory nature of the jurisdictional divide? Lord Reid began by noting that there ‘are many cases where although [a] tribunal has jurisdiction to enter [an] inquiry’ it may do ‘something in the course of the inquiry which is of such a nature that its decision is a nullity.’ Crucially, such circumstances included the situation where the relevant body had ‘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.’ What Lord Reid is noticing here is a relationship of entailment. If an administrative decision-maker misinterprets the conditions under which it has capacity to act—if it makes, in the relevant sense, an error of law—then it will have departed from the requirements the statutory scheme. It will have made, in other words, a jurisdictional error. This holds whether the condition in question is interpreted too broadly—so as to imply a power where there is none—or too narrowly—thereby artificially limiting the scope of the administration’s decision-making authority. There is, moreover, no distinction to be drawn between the individual conditions that together give rise to a particular administrative power; to misunderstand even part of the question is still to misunderstand the question. The old divide between errors of law going to jurisdiction and errors that do not falls away, then, not because any of the judges in Anisminic intended to expunge it from the law but because there is no conceptual space for it. The distinction could no more be maintained than a rule permitting certain bachelors to be married.

Why, then, did the jurisdictional divide preserve its grip on the minds of lawyers for so long? Part of the reason may have to do with the way in which the issue was framed by the courts. Often, instead of asking whether an error went to the jurisdiction of a decision-maker, they would ask whether a particular mistake was either within or outside of its power. And of course it is perfectly possible for an administrative agent to misconstrue their powers in such a way as to confine rather than broaden the scope of their authority (consider, for example, a minister giving an overly restrictive reading of the term ‘asylum-seeker’ in legislation designed to afford individuals with this status certain protections). Such an error would be an error ‘within jurisdiction’ in this sense but one that the court ought to intervene to correct nonetheless.

A more important part of the explanation has to do with the use that the courts had put the distinction to work in doing. For the jurisdictional divide had been used to signal a policy of deference to the administration. By classifying an error of law as non-jurisdictional the court allowed itself the room to both disagree with the administration’s interpretation of its power—to hold it to be in error— but nonetheless to uphold the latter’s judgment as controlling—because not subject to correction on jurisdictional grounds.  Did the conceptual breakthrough in Anisminic signal an end to this possibility for deference? Some interpreted it as doing so. Because all errors of law are reviewable by the courts so it might seem as though no space is left for administrative autonomy and expertise in defining jurisdiction (a belief of this kind has underpinned the unfortunate instrumentalisation of the distinction between law and fact given that the latter category uncontroversially allows for deference on the part of the reviewing body).

But the rule in Anisminic does not require this result. It holds that if the administration has misinterpreted the conditions under which it has the power to act then the courts should intervene. The conditional nature of the principle is crucial as it leaves open the question, for any given context, whether the court will be better suited than the administration to understand the meaning of the relevant statutory provision. So Anisminic changed the nature of the jurisdictional debate from a discussion about the kinds of mistakes that might be thought to trigger review through to one about the circumstances in which the courts are able to determine that the administration has fallen into error. And it is this question with which the courts have subsequently grappled, unencumbered by the old distinction between jurisdictional and non-jurisdictional errors of law.


Thomas Adams is a Research Fellow in Law at Corpus Christi College, Cambridge. His interests include jurisprudence, with a particular focus on issues relating to method and social ontology, as well as theoretical aspects of public law.