Administrative Law

Steven Cann

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351729147
• Edition: 1
• Topic: Ciencias sociales
• Subtopic: Sociología

This title was first published in 2002. Designed to complement the first volume on administrative law which was published as part of the original series of "The International Library of Essays in Law and Legal Theory", the articles contained in this volume pick up on themes dealt with in the first, while others reflect different concerns and new developments in administrative law scholarship. It offers a representative sample of the best contemporary writing in administrative law - theoretical, empirical and doctrinal. What ties all the essays in this volume together is not that they fall within the province of administrative law, but that they are all concerned with the legal framework within which government business is conducted, and government policies are pursued, by executive action.

Part I
Grounds of Judicial Review

[1]
Questions of Law

TIMOTHY ENDICOTT.^*

Here is a question of law, if your Lordships please to treat it as such. Lord Denning to the House of Lords¹

And be it moon, or sun, or what you please:

And if you please to call it a rush-candle,

Henceforth I vow it shall be so for me.

Katharine to Petruchio²

Lord Denning did not take an analytical approach to identifying questions of law, any more than Katharine took an analytical approach to identifying the moon. They both sought a characterisation of the phenomena that would do what they needed done—they took a pragmatic approach.

A consensus has recently emerged among academic commentators on administrative law: that the courts should take a pragmatic approach to identifying questions of law. According to the consensus, it is impossible or useless or dangerous to ask what questions are questions of law. Judges should ask, instead, what questions it would be useful to treat as questions of law. The consensus is that a pragmatic approach to identifying questions of law is preferable to an analytical approach. I will argue that a sound analytical approach is possible, and is capable of being useful, and is incapable of being dangerous. If the argument succeeds, it will mean that administrative law scholars need to reconceive the distinction between analytical and pragmatic reasoning.

The problem of identifying questions of law is introduced in section I using the House of Lords decision in Cozens v. Brutus.³ The problem arises in several branches of the law; it is worth pointing out some of those branches, if only to see the special difficulties that the problem creates in administrative law (section II). Part of the argument of this article is that it is worth paying closer attention to the techniques that the judges have developed to cope with the problem (section El). Those techniques are diverse and occasionally confused, but a common thread has emerged that supports the main argument of this article. The common thread is the principle that a question of application of statutory language is a question of law when the law requires one answer to it. Section IV describes the academic consensus in favour of a pragmatic approach to the problem, and section V comments on the nature of analytical and pragmatic approaches to problems. The main argument of the article is presented in section VI, and summarised at the end of that section. The argument presents an account of analysis as resting on normative judgments, and concludes that the common thread in the cases corresponds to a sound analytical approach to the problem. Sections VII and VIII comment on the extent to which the proposed solution is at odds with the academic consensus, and is at one with the reasoning of the judges.

I. THE PROBLEM

On a June afternoon at Wimbledon, 1971, Dennis Brutus invaded Court Number 2. Brutus was an anti-apartheid activist. He wanted to disrupt a doubles match featuring a South African player, Cliff Drysdale. Brutus blew a whistle, and he threw leaflets, and he sat down on the court. The police dragged him away, and charged him under the Public Order Act 1936, with the offence of using “insulting” behaviour that was likely to occasion a breach of the peace.

The magistrates dismissed the charge against Brutus. They decided that his behaviour had not been insulting. The Divisional Court allowed an appeal by the police, but the House of Lords restored the magistrates’ decision. Lord Reid did not just agree with the magistrates. He thought the Divisional Court should not have heard the appeal. They only had jurisdiction to hear an appeal on a question of law. Lord Reid held that the question of whether Brutus’s behaviour was insulting was not a question of law: “The meaning of an ordinary word of the English language,” he said, “is not a question of law”.⁴

Was there a question of law at issue in the police appeal? We can see three questions the magistrates had to answer:

1. Question of Fact: “What did Brutus do on Court Number 2?”
   The magistrates had the testimony of the police witnesses to help them answer that question.
2. Question of Law: “What is the offence?”
   The magistrates had the Public Order Act to help them answer that question. When they read section 5, they found that Brutus’s behaviour had to have been insulting. And that raises the third question, which we can call a “question of application”:
3. Question of Application:. “Was Brutus’s behaviour insulting?”

The magistrates dismissed the information against Brutus because their answer to Question 3 was “no”. Then the judges in the Divisional Court had to address a new question: did the Divisional Court have the power to reverse the magistrates’ decision? It could only interfere on questions of law. So look back at the three questions the magistrates faced. Question 1 is not a question of law.⁵ Question 2 is a question of law, and if the magistrates had, e.g. said that the Act should be read to prohibit any inconsiderate behaviour, the Divisional Court could have reversed their decision. But the magistrates simply read it as it was written—to say that there was no offence unless Brutus’s behaviour was insulting. So they seem not to have erred on a question of law, unless Question 3 is a question of law.

What about the vexed Question 3, the question of application? Is that a question of fact, or a question of law? Or is it some other animal? The judges of the Divisional Court had to solve that problem (I will call it “the problem”) in order to decide if they could interfere with the magistrates’ decision.

II. THE SCOPE OF THE PROBLEM

The distinction between law and fact can be important in a variety of legal contexts: mistakes of fact and mistakes of law may be treated differently in criminal law, and mistakes or misrepresentations of fact and of law may be treated differently in contract law. Rules of pleading typically require a party to plead facts, and prohibit the pleading of law.

But the most common use of the notion of questions of law is to distribute decision-making power and responsibility. It is the standard device that common law systems have used to order relations between two decision-makers. The obvious example is jury trial: judges answer questions of law, and juries answer questions of fact.⁶ But the doctrine of precedent is an example too. The common law distributes decision-making power by enabling the court that set the precedent to bind a later court on questions of law, but not on questions of fact. The final example, and the most important for our purposes, is that courts reviewing the decisions of other decision-makers are often given power to interfere on questions of law, but not on questions of fact. Arbitrators are one such decision-maker.⁷ But most cases arise in three areas on the fringes of administrative law: appeals from magistrates (as in Brutus), and from the Employment Appeals Tribunals,⁸ and (in vast numbers) from the tax commissioners.⁹ The same distinction also governs the scope of review in the core areas of administrative law: dozens of statutes provide for appeals on “a question of law”.¹⁰

Most dramatically, the judges have developed their own supervisory review of administrative decision making so that they can reverse an administrative decision on a question of law without a statute conferring the power to do so. Since Anisminic,¹¹ the judges have refined jurisdictional review to such a pitch of sophistication that the word “jurisdiction” is no longer needed, and a court will simply substitute its view for that of the administrative decision-maker on any question of law. We can call this form of review the “Page doctrine”, after its most unequivocal assertion in the House of Lords:

… in general any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law.¹²

Under the Page doctrine, review for error of law is its own rationale. Why is judicial review available against an error of law? Because it is an error of law.

The remarkable feature of the Page doctrine is the way in which it assimilates supervisory review to appellate review, at least in this respect: that supervisory review (generally) and statutory appeals (typically) are both available to correct errors of law.¹³ It is a commonplace in the lore of administrative law that an appeal on a question of law is to be distinguished from supervisory review;¹⁴ the House of Lords has partly abolished the distinction.¹⁵

This article will focus on the problem in the context of administrative law. The argument may have implications for jury trial and for the doctrine of precedent. But in those contexts matters are somewhat more straightforward. In both, the decision-maker with power to decide questions of law acts first. In jury trials, the judge directs the trier of fact. Difficult issues arise as to how much the judge should tell the jury, but those issues get resolved without conceptual headaches, by rules governing directions (indeed, the problem is often addressed by talking of “questions for the judge” and “questions for the jury” rather than “questions of law” and “questions of fact”¹⁶). In the doctrine of precedent, as in jury trial, the decision-maker with power to bind on questions of law acts first. And in this context the need to interpret previous cases and the power to distinguish them provide very flexible techniques for addressing the problem: it is the decision-maker that is bound on questions of law that decides what answers the first decision-maker has given to questions of law.

In judicial review,¹⁷ the process is reversed: the decision-maker with power to bind on questions of law makes its decision after the other decision-maker has already given a decision. Imagine that a jury gave its verdict first, without instruction, and then a judge had to decide whether they had erred in law. Or imagine that the doctrine of precedent worked backwards, with the second court passing judgment on the legal validity of the previous decision. These topsy-turvy scenarios point out what is difficult about distribution of decision-making power in judicial review: it is an institutionalised form of second guessing.¹⁸

So in what follows I will concentrate on the problem in administrative law, for two reasons: because that is where the interesting difficulties arise, and because the problem has such far-reaching practical implications for the scope of judicial review, especially under the Page doctrine. For convenience I will call the decision...

Table of contents

• Cover
• HalfTitle
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I GROUNDS OF JUDICIAL REVIEW
• PART II CROSS-CURRENTS
• PART III EMPIRICAL RESEARCH
• PART IV THE ECONOMICS OF PUBLIC LAW
• PART V LIABILITY
• Name Index