Ouster clauses raise difficult questions about the relationship between the constitutional principles of the rule of law and the sovereignty of Parliament — as the disagreement between the two judges in this case demonstrates. Act However, section 67 8 of the Regulation of Investigatory Powers Act provided that:. 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.

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Edwards v Bairstow [] AC 14 : The classic case on review of decisions applying the law. Bairstow seized an opportunity to buy a spinning plant at the low price of? His tax liability depended on whether the venture was an? The Inland Revenue assessed the profit as subject to tax; the General Commissioners held that the venture was not an adventure in the nature of trade. On an appeal on a point of law by the Revenue, a High Court judge upheld the Commissioners?

The House of Lords overturned that decision. As to the application of the law to the facts, Lord Radcliffe held that if as in this case the law does not give a precise definition of the activity that is taxed, then there may be? If the facts of any particular case are fairly capable of being so described, it seems to me that it necessarily follows that the determination of the Commissioners, Special or General, to the effect that a trade does or does not exist is not "erroneous in point of law"; and, if a determination cannot be shown to be erroneous in point of law, the statute does not admit of its being upset by the Court on appeal.?

But the House of Lords held in favour of the Revenue on the ground that the deal was undeniably an adventure in the nature of trade. In Lord Radcliffe? On review of? 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 Commission rejected Anisminic? Their argument was simply that the Commission misinterpreted the criteria for compensation, yet the House of Lords issued the declaration. The majority of the Law Lords held that the Commission had misinterpreted the criteria, and that their error of law was of such a kind that there was no? According to Lord Reid, the Commission had decided the claim? On the misinterpretation of this decision that has become the basis of the doctrine of review for error of law, see pp Pearlman v Keepers and Governors of Harrow School [] QB 56 CA : Ahead of his time that is, before the House of Lords had settled on review for error of law , Lord Denning said that the distinction between an error which entails absence of jurisdiction, and an error made within the jurisdiction,?

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.? The break-through made by Anisminic was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished.

Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity.? Lord Diplock said that the reason for the rule was a presumption? But Racal lost its claim for judicial review of an order of a High Court judge ordering inspection of its books for the purpose of investigating an allegation of a criminal offence.

The House of Lords held that when a statute gives a decision-making power to a High Court judge, there is no presumption that Parliament did not intend to confer power to decide a question of law. 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, i.

Its purported "determination," not being a "determination" within the meaning of the empowering legislation, was accordingly a nullity.? But that was obiter , because the Law Lords held that Lord Diplock? For that reason, they would not be held to have acted outside their jurisdiction merely on the ground that they had made an error of law. Judicial review does lie to the visitor in cases where he has acted outside his jurisdiction in the narrow sense or abused his powers or acted in breach of the rules of natural justice.?

A bus company sought judicial review on the ground that the Commission was investigating a merger that only affected a small part of the country see p for a map.

The company argued that the Commission had jurisdiction only if the area affected was a substantial part of the UK, and that the court had to decide whether that was the case and impose it on the Commission in order to keep it within its jurisdiction. Lord Mustill said,. I agree with this argument in part, but only in part.

Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained.

So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case.

In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [] AC The present is such a case. Even after eliminating inappropriate senses of? Approaching the matter in this light I am quite satisfied that there is no ground for interference by the court, since the conclusion at which the commission arrived was well within the permissible field of judgment.?

Social Security Contributions and Benefits Act s 72 1 a ii. She could cook for herself some days more than half the time , but not always. She was turned down; she lost in the tribunal, and in an appeal to another tribunal on a question of law; she won in the Court of Appeal but finally lost in the House of Lords. Lord Hoffmann held that in an appeal on a point of law, the court should not overturn a decision applying the law to the facts?

The tribunal concluded that the persecution of Muslim Brotherhood members had ended; E wanted to introduce new evidence. The Court of Appeal held that the new evidence should be admitted if it was relevant to an appeal on a question of law. To decide whether the evidence as to primary facts could support an appeal on a question of law, the judges gave an extended discussion of the review of fact finding in administrative law at [36]-[66], concluding that?

But not just any error of fact will lead to unfairness. The judges held as follows concerning unfairness:. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are?. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable.

Thirdly, the appellant or his advisers must not been have been responsible for the mistake. Fourthly, the mistake must have played a material not necessarily decisive part in the tribunal's reasoning.? Lord Mustill said,? The judges held as follows concerning unfairness:?


Chapter 9: Notes on key cases

LORD REID : The next argument was that, by reason of the provisions of section 4 4 of the Act, the courts are precluded from considering whether the respondent's determination was a nullity, and therefore it must be treated as valid whether or not inquiry would disclose that it was a nullity. Section 4 4 is in these terms:. 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.


Anisminic 2.0

I want to explore three aspects of the decision in Anisminic v Foreign Compensation Commission [] 2 AC which are relevant to the Privacy International ouster clause litigation. I will explain their relevance by reference to comparative materials. First, the relationship between form and substance. This reasoning could justly be described as formalistic. But it has a strong substantive underpinning.

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