Teaching Anisminic in a Foreign Language

Earlier this month, I spent a week on a research visit to Paris II Panthéon-Assas, one of France’s leading legal academic institutions, where I was based at the Institut Villey.

One of my tasks was to teach, with my sponsor, Professor Denis Baranger, two classes on comparative constitutional law. We had hoped to discuss justiciability, deference and privative clauses. In the end, however, we spent four hours on Anisminic v Foreign Compensation Commission [1969] 2 AC 147, switching between English and French.

I have taught the case many times before but teaching it to a foreign audience was an eye-opening experience, not least because some of the key terms — “nullity” and “jurisdictional error” — have no obvious French equivalents: good luck, comparativists! Whereas in England and Canada I teach Anisminic for the conventional purposes of (1) explaining how common law courts approach privative clauses and (2) demonstrating why English law jettisonned the distinction between jurisdictional and non-jurisdictional error of law, in Paris I gained a particular appreciation for two other aspects of the case.

First, the demise of the distinction between jurisdictional and non-jurisdictional error of law, along with the eradication in Ridge v Baldwin of the distinction between quasi-judicial and administrative decisions, paved the way for the development of a unified set of principles — of legality, rationality and procedural propriety — of judicial review of administrative action. Anisminic is generally held as establishing the centrality of jurisdictional error in English administrative law. But does it? As Professor Baranger observed to me, one scours Anisminic in vain for reference to “ultra vires”, which one might expect if jurisdiction were indeed intended to operate as the organising principle of English administrative law. Instead, the impression one gets, especially from Lord Reid’s speech, is that there is now a list of nullifying errors, a list of reasons for judicial intervention in respect of unlawful administrative decisions, with no area of administrative action walled off from judicial oversight. One can attach the label “jurisdictional error” to this list, but the contents of the list are of greater practical importance: hence the emergence shortly afterwards of Lord Diplock’s GCHQ typology of legality, rationality and procedural propriety;* and the notion that public law is concerned with controlling “abuse of power”. (Again, as Professor Baranger observed, “ultra vires” does not appear in GCHQ.)

One has to be careful, of course, with Anisminic, because some of the propositions it now stands for — the abolition of non-jurisdictional error of law; a standard of correctness for questions of law — do not emerge clearly from the case itself (on which see Timothy Endicott and David Feldman). And the emergence of legality, rationality and procedural propriety — under the overarching rubric of “abuse of power” — owes a great deal to the introduction of a unified application for judicial review (a “guichet unique”, to borrow from Professor Baranger), which permitted the development of principles of administrative law where before there had only been principles of certiorari, mandamus, prohibition, quo warranto and habeas corpus. It seems to me, nonetheless, that the importance of Anisminic resides in the recogniton that the list of nullifying errors a statutory body might commit in the course of its activities is more important than fine, metaphysical distinctions between jurisdictional and non-jurisdictional error.

Second, it is wrong to think that the majority in Anisminic, in describing a determination of the Foreign Compensation Commission tainted by an error of law as a “nullity”, were engaged in an exercise in metaphysics. Again, Anisminic is sometimes taken as authority for the proposition that unlawful administrative decisions are nullities, that they never existed in the eyes of the law, with the corollary that judges should not have any discretion to refuse judicial review remedies. But this surely mischaracterises the exercise undertaken by Lord Reid and his colleagues in Anisminic. The reason they described the Commission’s determination that Anisminic could not make a claim as a “nullity” was to avoid giving effect to the ouster clause in s. 4(4) of the Foreign Compensation Act 1950. Interpreting the ouster clause narrowly — so as to exclude “nullities” from its ambit — was designed to protect fundamental constitutional principles: the right of a citizen to access the High Court; and the High Court’s capacity to ensure compliance by statutory bodies with the general law of the land. A broader interpretation would have permitted the Commission to make errors of law in discharging its quasi-judicial function of determining the rights of claimants to the fund administered by the Commission. Describing the Commission’s decision as a “nullity” was a pragmatic response, based on principles drawn from previous decided cases, to a threat to the separation of powers and rule of law posed by the ouster clause.

More broadly, it seems to me to be quite wrong to use general, abstract concepts to think about British constitutional law. In Anisminic the concept of a “nullity” is pragmatic rather than metaphysical. One indication that this is so is that the supposed corollary of Anisminic, that there exists no discretion to deny judicial review remedies, is simply flatly inconsistent with judicial practice. Similarly, applying the abstract concept of “sovereignty” to the British Constitution is apt to mislead. In France or in Ireland (where according to the Constitution “all powers, legislative, executive and judicial derive, under God, from the People”), the Sovereign can plausibly be thought of as the source of all powers. But sovereignty, even parliamentary sovereignty, cannot be understood in the same way in the British Constitution — Parliament might be sovereign but it cannot be said (with a straight face, at any rate) that Parliament is the source of all powers. Just as nullity in Anisminic can only be properly understood by observing the effects the concept has in practice, sovereignty in the British Constitution can only be understood by observing the ways in which power is exercised, as a matter of practice, by the various governmental organs.

There is, perhaps, nothing especially original in these observations, but without my time at the lectern in Paris I would not have come to appreciate them to the same extent (or, maybe, at all). There is, then, much to be said for teaching Anisminic in a foreign language.

* I find it difficult to say “légalité, rationalité et équite procédurale” in French without thinking of the fictional rendition of Dominique de Villepin in Quai d’Orsay (see here).

This content has been updated on April 22, 2018 at 09:15.