Why is Administrative Law So Difficult?

Paul Daly April 24, 2017

One of the tasks that is occupying my time at present is the preparation of the next edition of Hogan and Morgan’s Administrative Law in Ireland. I contributed to the previous edition and will co-author the next. I drafted the passage below to try and provide a general explanation of why the Irish law on jurisdictional error is so complex and confused. Comments very welcome!

The authors’ constant refrain, over multiple editions of this book, has been that the Irish courts have not provided authoritative answers to important questions that arise in the area of jurisdictional error. We repeat these laments in the text that follows. However, it seems to us that it may be useful to place them in their proper context. The law relating to jurisdiction has posed difficulties not just in Ireland but around the common law world. Some reflection on why that is – with particular reference to Ireland – may assist the reader in appreciating the issues at stake.

First of all, the concepts employed are not especially helpful. What is a “jurisdictional” matter as opposed to a matter bound up with the “merits” of a decision? No test has ever been elaborated to give concrete content to the concepts of “jurisdiction” and “merits”. Similarly, the boundaries of “law” and “fact” are uncertain:

“Perplexing problems may, however, arise in analysing the nature of the process by which a tribunal determines whether a factual situation falls within or without the limits of a category or standard prescribed by a statute or other legal instrument. Every finding by a tribunal postulates a process of abstraction and inference, which may be conditioned solely by the adjudicator’s practical experience and knowledge of affairs, or partly or wholly by his knowledge of legal principle. He hears evidence and, by satisfying himself as to its reliability, finds what were the ‘true’ facts; it may then be necessary for him to draw a series of inferences from these primary findings in order to determine what were the material facts on which he has to base his decision; in order to draw certain of these inferences correctly he may need to apply his knowledge of legal rules. At what point does an inference drawn from facts become an inference of law? Is the application of a statutory norm to the material facts always to be classified as the determination of a question of law? And where in this spectrum lie questions of policy?”[1]

This is not necessarily to suggest that concepts such as “jurisdiction”, “merits”, “law” and “fact” should be jettisoned altogether. If nothing else, they are useful intuitively – a lawyer looking for a jurisdictional error or a question of fact will typically know roughly, by virtue of training and experience, what he or she is looking for. Translating intuition into language, however, has been a constant difficulty in this area of administrative law, which the reader ought to bear in mind.

Second, the evolution of this area of administrative law has been heavily influenced by its historical origins. Historically, the scope of review for error of law, fact and jurisdiction has been tied to the scope of the ‘prerogative writs’ of certiorari (and prohibition), mandamus, quo warranto and habeas corpus. The English courts, in a series of decisions in the 1960s and 1970s, began to set aside the technical restrictions on the availability of these remedies, replacing the old restrictions with a unified approach to assessing the legality of administrative decisions. This unified approach was memorably memorialised by Lord Diplock in the GCHQ case as judicial oversight of the legality, rationality and procedural propriety of administrative decision making.

By contrast, Ireland has never had such a clean break with the past. As we will see, some comparatively ancient authorities remain good, and frequently cited, law in this jurisdiction.  Authorities old and new are relevant to the availability of the remedy of certiorari and, thus, to the scope of review for error of law, fact and jurisdiction. Many of these authorities originate in the District and Circuit Courts and relate to criminal law and procedure. Their relevance to administrative bodies such as regulators, tribunals and ministers might be thought to be limited as a matter of pure theory, on the basis that there is a great difference between District judges’ decisions on the management of individual cases in the criminal process and regulators’ decisions on general policy matters. But as a matter of practice and, indeed, of precedent, authorities relating to the availability of certiorari in respect of criminal law matters are relevant to the scope of review of administrative decision making.

The path of Irish administrative law has been heavily influenced by constitutional considerations. Around the same time that English administrative lawyers began to focus on the development of a unified system of administrative law (to use Lord Diplock’s term), their Irish counterparts began to discover that the Constitution placed an impressive array of tools at their disposal. Reform-minded English administrative lawyers had nothing else to turn to than the common law. By contrast, in Ireland, the moulding of administrative law to the realities of the twentieth-century administrative state was a task that could be accomplished with constitutional instruments. In this jurisdiction, it was not necessary to focus on developing a unified common law of judicial review of administrative action. That Irish law has developed on a different track is perhaps unfortunate in some respects – especially because the Constitution has little or nothing to say about “jurisdiction” and “error of law” – but it is entirely understandable and may in some ways even be to the credit of Ireland’s legal community.

Third, in exercising their reviewing function, the courts have always been equivocal about drawing a line between judicial control and the autonomy of administrative decision makers or inferior tribunals. This was true at the historical origins of the prerogative writs and remains true today, even in those jurisdictions in which the scope of review has gradually been decoupled from the scope of remedies. Achieving an appropriate balance between judicial control – designed to ensure compliance with the fundamental values of the legal system – and the ambit of discretion of administrators – designed to facilitate effective and efficient administration – is a constant challenge for administrative lawyers around the common law world. Judges have struck the balance differently in different places at different times. That they have often done so on the basis of unexpressed considerations or concerns about the relative weight to accord to private rights and the public good adds a further layer of complexity to an already difficult area of administrative law.

Finally, judges adjudicating on claims that an administrative decision-maker has made a jurisdictional error may respond in a variety of ways. Those who are not minded, on the facts of a particular case, to intervene to quash the decision complained of may (1) hold that there is no error ‘on the face of the record’; (2) classify the question at issue as one of non-jurisdictional fact, or of mixed law and fact (such that the threshold for intervention is higher and has not been met); or (3) classify the question at issue as one of law, but hold that it is immaterial to the decision complained of. Judges who are not persuaded that an administrative decision should be set aside may choose one of options (1), (2) and (3) and, having thus resolved the case, might not feel the need to further explain and justify their choice. Meanwhile, these who are minded to intervene might do so by (4) classifying an error (either of law or fact) as jurisdictional in nature; (5) finding an error of law on the face of the record; or (6) extracting a legal question to answer authoritatively (and in a different way from the decision maker under review). A judge may well decide that intervention is necessary because a particular point should be decided authoritatively but need not express clearly the reasons for so thinking, still less the reasons for choosing option (4), (5) or (6). The range of options available to judges, and the fact that judicial choice between the options might not be clearly explained in individual cases, coats this area of administrative law with a layer of opacity.

[1]    De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th edn (London: Sweet & Maxwell, 1995), p.297..


Updated April 24, 2017 at 12:21.