Anisminic Error and Discretion in Judicial Review
| Date | 01 January 2017 |
| Author | James Kane |
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Anisminic Error and Discretion in Judicial Review
JAMES KANE
Introduction
Irish courts are not consistent in the manner in which they deal with judicial
review of errors of law. Irish law tolerates two discordant theories. On the one
hand, there is the theory that any error of law made by a public decision-maker is
prone to judicial review. On the other hand, a theory exists to the eect that some
errors of law are permissible where they are made within jurisdiction. ese intra-
jurisdictional errors are not to be disturbed by courts granting quashing orders.
English law is hostile to the proposition that a decision-maker may err within
jurisdiction. Since the House of Lords decision in Anisminic Limited v Foreign
Compensation Commission, English law is clear on the reviewability of errors of law.
All errors of law are reviewable in English law.1
At a level of principle, these theories are mutually exclusive. One cannot say that a
decision-maker has a reserved pasture within which it is entitled to err, on the one
hand, and also say that all errors of law made by a decision-maker are in excess of
jurisdiction, thereby amenable to judicial review, on the other. e problem with
Irish law is that it tolerates both theories. Irish law has not emphatically endorsed
one principle over the other. Rather the Irish courts have vacillated between
the two theories. Whatever theory one may prefer, the lack of a principled and
consistent approach by the Irish courts to applications for review of errors of law is
unsatisfactory. Several jurists are critical of Irish law in that regard.2
In the recent High Court case of SFA v Minister for Justice and Equality,3
MacEochaidh J suggested that the exercise of judicial discretion might provide a
means for dealing with the problematic question of errors of law. One of the matters
canvassed within is the possibility of the principles of judicial discretion providing
a principled way forward for dealing with the question of the reviewability of errors
of law.
1 Anisminic Limited v Foreign Compensation Commission [1969] 2 A.C. 147 [hereinaer Anisminic]
2 See G. Hogan and D. Morgan, Administrative Law, 4th edn (Dublin: Roundhall, 2012) para.
10–115: “e old distinctions [between errors within jurisdiction and those that are not] retained
an exiguous vitality and the courts veered from one direction to another without ever reproaching
themselves for their lack of consistency in this matter.” See also James O’Reilly, “Errors of Fact and
Errors of Law as Grounds for Judicial Review” (2012) 47(1) e Irish Jurist 1 in which the author
states that Irish law is “bedevilled” by “confusing” case law in this context. See also M. DeBlacam,
Judicial Review, 3rd edn (Dublin: Bloomsbury Professional, 2017) where the author appears critical
of the courts in this regard in para. 8.16.
3 SFA v Minister for Justice and Equality [2015] I.E.H.C. 364 [hereinaer SFA ]
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Before looking at the issue of jurisdictional error, brief consideration of the issue of
discretion is merited.
Discretion in Judicial Review
Discretion in judicial review refers to the fact that a court may refuse the reliefs
sought by an applicant, despite the applicant demonstrating that its claim is correct
on its merits. Essentially, even if an applicant can demonstrate to the court that the
impugned decision was unlawful, the court may, in the exercise of its discretion,
refuse to exercise its supervisory jurisdiction and consequently refuse to grant
relief.4 Having said that, discretion is usually exercised by reference to established
principles; discretion is not an unrestrained, arbitrary power. It is also the case
that discretion operates in respect of the question whether or not relief should be
granted. It does not and cannot operate to rectify decisions that are legal nullities,
rather discretion eects the question whether the courts will provide a remedy in
a given case. Much of this is academic from the perspective of the unsuccessful
applicant. Aer all, the refusal to grant relief on discretionary grounds holds the
same practical ramications for the applicant as a court approving of an unlawful
decision.
English jurisprudence on the issue of discretion, in the specic context of errors of
law, is more developed than Irish law. is is conrmed in Wade and Forsyth where
the authors state that the emergence of the theory in English law that “all errors of
law are jurisdictional implies certain limits on the operation of remedial discretion.”5
e authors go on to state that a decision made under the labour of an error of law
is a nullity. Were the courts then to refuse to grant relief in the form of a declaration
or certiorari, they would obfuscate the situation. In other words, to withhold relief
would jar with the true situation, namely that the impugned decision is null and
void. In those circumstances, it would be strange that the remedy would not follow
the substantive position. Before examining the manner in which discretion might
provide a principled solution to the reviewability of errors of law, it is necessary to
review the nature of jurisdictional error and the relevant case law.
Jurisdictional Error
In explaining the concept of jurisdictional error, DeBlacam gives the following
example.6 e Employment Appeals Tribunal (EAT) is given jurisdiction under
4 For further discussion see C. Lewis, Judicial Remedies in Public Law, 5th edn (London: Sweet and
Maxwell, 2014), Ch. 12
5 W. Wade and C. Forsyth, Administrative Law, 11th edn (Oxford: Oxford University Press, 2014),
p. 597
6 See M. DeBlacam, Judicial Review, 3rd edn (Dublin: Bloomsbury Professional, 2017), paras 8.01–
8.05
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