CHAPTER 2sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817Times 4 JanuaryRe [2007] Ch 150sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817sub nom Watt (formerly Carter) v Ahsan [2008] AC 696, [2008] ICR 82, [2005] ICR 1817Re [1966] Ch 236Times 1 February
chapter 2
Jurisdiction
2.2The nature of ‘jurisdiction’ 2.13The strict meaning of jurisdiction 2.14The exclusivity principle 2.21Determining a tribunal’s jurisdiction 2.27The scope of the tribunal’s jurisdiction 2.38The practical significance of jurisdiction 2.40Validity of decision for purposes of founding an appeal 2.41The validity of secondary legislation The enabling powers • Interpretation • Unauthorised provisions • The wider meaning of jurisdiction
2.50Validity of actions, notices and decisions 2.51Invalidity and its significance 2.53Logic and convenience 2.58Validity for the purpose of ruling on validity 2.59Validity of Upper Tribunal decision and directions 2.60Decisions made in other proceedings 2.66Power to entertain proceedings 2.74Decision made but not notified 2.77Decision made on invalid grounds 2.79Decision made in error of law 2.80Decisions made without due process 2.81Failure to apply the procedure correctly 2.90Ordinary and habitual residence 2.91Ordinary and habitual 2.109Lawfulness of residence 2.117Issues that have been, or could have been, decided already Civil law cases • Public law cases • Inquisitorial proceedings
2.149Issues covered by an inquiry 2.150Statements and promises 2.1Jurisdiction is central to the operation of all tribunals. They must act only within the jurisdiction that is conferred on them by legislation and, in doing so, they must exercise only the powers conferred on them.
The nature of ‘jurisdiction’
2.2Jurisdiction is used with two meanings: a general meaning and a particular meaning.
2.3In its general meaning, it has a narrow, strict sense and a wider sense. In the narrow sense, it means the tribunal’s authority to deal with particular types of case. In the wider sense, it means the powers that the tribunal may exercise when exercising its jurisdiction in the narrow sense.
2.4In its particular meaning, it refers to two matters: whether the proceedings have been properly brought and whether the tribunal was properly constituted to decide the case.
2.5Whether proceedings have been properly brought may raise issues relating to permission to proceed,
1Re Taylor (a bankrupt) [2007] Ch 150 at [56]; Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910, distinguished in Adorian v Metropolitan Police Commissioner [2009] 4 All ER 227. the time within which proceedings were brought,
2Rogers v Bodfari (Transport) Ltd [1973] ICR 325; Rimer J in Carter v Ahsan [2005] ICR 1817 at [70]; and R(I) 7/94 at [31]. But not a limitation period barring a remedy rather than extinguishing a right: see the distinction drawn by Sir John Donaldson P in Secretary of State for Employment v Atkins Auto Laundries Ltd [1972] 1 WLR 507 at 512; Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910 at [6]. and whether a party has a particular status.
3R (R) v Mental Health Review Tribunal (2006) Times 4 January. These are all preliminary matters that may have to be decided before the tribunal is entitled to enter upon the task of making a decision that fulfils its ultimate function. These matters are preliminary to the tribunal’s exercise of its jurisdiction in the strict sense, but not necessarily preliminary to the tribunal beginning to consider the case. Ideally they should be considered at the outset, but they have to be decided whenever they arise.
2.6Unfortunately, the law does not have terms of art, or even generally accepted language, to distinguish these differences of use. If it did, it would assist in precision of thought and analysis and reduce the opportunity for confusion. In
Carter v Ahsan,
4[2005] ICR 1817. Sedley LJ distinguished between constitutive and adjudicative jurisdiction:
By constitutive jurisdiction I mean the power given to a judicial body to decide certain classes of issue. By adjudicative jurisdiction I mean the entitlement of such a body to reach a decision within its constitutive jurisdiction.
5[2005] ICR 1817 at [16].This captures the distinction between the narrow and wider senses of the general meaning of jurisdiction, but it has not been adopted.
2.7In this book, jurisdiction is generally used in its narrow, strict meaning. This section deals with the general meaning of jurisdiction. The particular meaning is dealt with below.
6See paras 2.50 onwards.2.8The vagueness of language can lead to confusion in citation, if not in analysis. Authorities on one meaning of jurisdiction are not relevant to the other. But this does not stop them being confused.
Chessington World of Adventures Ltd v Reed7[1998] IRLR 56. is an example. Morison J was there dealing with an alleged inherent procedural power to make a restricted reporting order (jurisdiction in the wider sense), but cited a passage
8[1998] IRLR 56 at 62. from
Secretary of State for Employment v Mann9[1996] ICR 197 at 204. that dealt with substantive law (jurisdiction in the narrow sense).
2.9The vagueness of the language can leave it unclear whether some matters are jurisdictional and, if they are, in what sense. This is true of the temporal and geographical limits within which the tribunal must function.
2.10The temporal limit of a tribunal’s power determines the time in respect of which the tribunal has authority. This issue will always arise when a tribunal is created or abolished. It also arises every time there is a change in the tribunal’s jurisdiction under other heads. It is usually considered in the context of the retrospective effect of legislation.
2.11There are two geographical limits of a tribunal’s power. One limit depends on the location of events, persons or property. The tribunal’s authority may be limited to a particular country or area of a country where the events took place, property is located there or a person is present. The geographical limit may represent the area of authority of the legal system of which the tribunal system is a part
10Confusingly, the geographical area covered by a legal system is also known as a jurisdiction. or it may be a lesser area. The limit may apply to the tribunal system as a whole, particular tribunals within a system, or both.
2.12The other geographical limit depends on a person’s connection with that geographical area. The connection may be based on nationality, domicile or residence.
11The habitual residence of the parties is expressly referred to as a jurisdictional issue in section 44 of the Child Support Act 1991. Residence may be actual, ordinary or habitual.
The strict meaning of jurisdiction
2.13The factors that define the type of case that the tribunal exists to decide were identified by Diplock LJ in
Garthwaite v Garthwaite12[1964] P 356.In its narrow and strict sense, the ‘jurisdiction’ of a validly constituted court connotes the limits which are imposed on its power to hear and determine issues between persons seeking to avail themselves of its process by reference (i) to subject-matter of the issue, or (ii) to the persons between whom the issue is joined, or (iii) to the kind of relief sought, or any combination of these factors.
13[1964] P 356 at 387.The exclusivity principle
2.14A provision that purports to oust the jurisdiction of the courts will be interpreted strictly.
14Lord Reid in Anisminic v Foreign Compensation Commission [1969] 2 AC 149 at 170. This does not apply if the courts have never had any jurisdiction to be ousted.
15A v B (Investigatory Powers Tribunal: jurisdiction) [2010] 1 All ER 1149 at [22]. Nor does it apply if there is an effective alternative to court proceedings.
16Lord Nicholls in Farley v Secretary of State for Work and Pensions (No 2) [2006] 1 WLR 1817 at [18]. One alternative is a tribunal.
2.15The courts will not allow a party to bring court proceedings if the proper venue for the substance of the dispute is a tribunal. The courts accept and respect the autonomy of the tribunal within its jurisdiction.
17Lord Wilberforce in Anisminic v Foreign Compensation Commission [1969] 2 AC 149 at 208. This principle dates at least to the decision of the House of Lords in
Barraclough v Brown.18[1897] AC 615. The case concerned entitlement to expenses relating to the removal of a sunken vessel. Under the terms of the legislation, these expenses could be recovered in a court of summary jurisdiction. An action was brought in the High Court for a declaration on the right to the expenses. The House decided that it was not permissible to take the advantage conferred by a statute without using the means provided by the statute for enforcement (such as a tribunal).
19[1897] AC 615 at 620 per Lord Herschell. The legislation did not create the expenses as a debt recoverable in normal civil proceedings. They could only be recovered in a court of summary jurisdiction. By implication, the legislation provided that no other court had jurisdiction.
20[1897] AC 615 at 622 per Lord Watson.2.16This decision was followed and applied to tax legislation by the Court of Appeal in
Argosam Finance Co Ltd v Oxby (Inspector of Taxes)21[1965] Ch 390. and re-affirmed by the House of Lords in
Autologic Holdings plc v Inland Revenue Commissioners.22[2006] 1 AC 118. In the latter case, the tax paying company had sought to obtain declarations and relief from the courts instead of appealing against the assessment of tax to the Special Commissioners. The House held that the court proceedings were in substance an appeal, an indirect way of obtaining what was available through the statutory appeal, and a way of sidestepping the statutory procedure.
23[2006] 1 AC 118 at [12], [13] and [23] per Lord Nicholls.2.17This principle does not prevent parties using court proceedings by consent to decide a matter that relates to the basis of the tribunal’s jurisdiction, but is preliminary to it and suitable for decision without being too closely related to the tribunal’s jurisdiction.
24Autologic Holdings plc v Inland Revenue Commissioners [2006] 1 AC 118 at [14] per Lord Nicholls, relying on Lord Wilberforce in Vandervell Trustees Ltd v White [1971] AC 912 at 939–940. Lord Nicholls emphasised that this gave the court a discretion at [15].2.18Ultimately, the exclusivity principle is a principle of interpretation, not a rule of law. This has two consequences. First, the same result may be obtained, without reference to the exclusivity principle, simply by interpretation of the relevant legislation.
25As in R v Davey [1899] 2 QB 301; Farley v Child Support Agency [2006] UKHL 31 at [18]; Lindum Construction Co Ltd v Office of Fair Trading [2015] 2 All ER 177. Second, the exclusivity principle is subject to contrary provision.
2.19The relationship between a tribunal’s jurisdiction and judicial review requires separate consideration. The availability of judicial review cannot be removed by implication. It must be removed expressly and clearly. However, judicial review is a discretionary remedy, so that the High Court may refuse permission if the tribunal provides an adequate alternative remedy.
2.20In
A v B (Investigatory Powers Tribunal: jurisdiction),
26[2010] 1 All ER 1149. the Supreme Court held that there was no scope for a judicial review in addition to the tribunal’s jurisdiction under section 65(2)(a) of the Regulation of Investigatory Powers Act 2000. In
R (Khan) v Secretary of State for the Home Department,
27[2016] 1 WLR 747. in contrast, the High Court held that the existence of a statutory appeal in an immigration matter did not preclude the judicial review jurisdiction if the case raised an issue of precedent fact or involved exceptional or special circumstances.
Determining a tribunal’s jurisdiction
2.21A tribunal has jurisdiction to determine whether it has jurisdiction in particular circumstances.
28R v Fulham, Hammersmith and Kensington Rent Tribunal ex p Zerek [1951] 2 QB 1. It is treated as deciding any issue of jurisdiction, even if it does not do so expressly and the issue is not raised by the parties.
29Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid [2007] 1 WLR 124 at [15]. An issue of jurisdiction is always raised by an appeal for the purposes of provisions such as section 12(8)(a) of the Social Security Act 1998: see chapter 4. Under UTR r8(2)(a) and its equivalents, the tribunal is under a duty to strike out proceedings if it does not have jurisdiction. This duty, if it is valid, deprives the tribunal of the power to decide the issue. See chapter 12.
2.22If the tribunal deals expressly with the issue itself, it may do so as a preliminary issue.
30Potts v IRC (1982) 56 TC 25 at 35 and Rimer J in Carter v Ahsan [2005] ICR 1817 at [70]. But if the matter may be better tested elsewhere, it may be more appropriate for the tribunal to adjourn to allow this to be done.
31Devlin J in R v Fulham, Hammersmith and Kensington Rent Tribunal ex p Zerek [1951] 2 QB 1 at 13–14. This is consistent with the exclusivity principle.
2.23An issue of jurisdiction may be raised by any party to the proceedings at any stage.
32Buxton LJ in Carter v Ahsan [2005] ICR 1817 at [82]. The tribunal is under a duty to take any jurisdictional point on its own initiative, even if the issue is not raised by the parties.
33Rimer J and Buxton LJ in Carter v Ahsan [2005] ICR 1817 at [75] and [82]. A tribunal must ensure that it has jurisdiction to make its decision, but it need not seek out an alternative jurisdiction on which it can make a decision.
34B v R [2010] 1 FLR 563 at paras [33] and [37].2.24On appeal, the Upper Tribunal has power to determine the First-tier Tribunal’s jurisdiction and so on up the judicial hierarchy.
35Lord Denning MR in Arsenal Football Club Ltd v Ende [1977] QB 100 at 116.2.25The factors relevant to a tribunal’s jurisdiction may be readily apparent from the information provided when the proceedings were commenced or they may require further consideration of evidence and argument. They may have to be objectively present or the tribunal may be given the power, expressly or by implication, to decide for itself whether the factor exists.
36Sedley LJ in Carter v Ahsan [2005] ICR 1817 at [21].2.26A tribunal must not accept jurisdiction that has purportedly but wrongly been conferred on it. It must disregard any decision that does so, even if it has not been set aside.
37R(I) 14/65 at [7] and R(AF) 1/09 (leave given outside maximum time allowed); R(I) 7/94 at [30]–[31] (application to set aside a decision made outside the prescribed time); R(SB) 1/95 at [12]–[13] (late appeal accepted on an invalid application); Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295 at 2302 (previous decision set aside by chairman without power to do so); Carter v Ahsan [2005] ICR 1817 at [75] (Court of Appeal decision overruling Employment Appeal Tribunal decision on scope of appeal before employment tribunal). It cannot leave the issue to be dealt with on judicial review, because that is not an exclusive means of remedying an excess of jurisdiction.
38Willes J in Mayor and Aldermen of the City of London v Cox (1867) LR 2 HL 239 at 262–263; R v Judge Pugh ex p Graham [1951] 2 KB 623. This is subject to the rules of precedent. The earlier decision must be accepted if binding.
The scope of the tribunal’s jurisdiction
2.27A tribunal is a statutory body. It has only the jurisdiction that is conferred on it by statute.
39Lord Atkin in Evans v Bartlam [1937] AC 473 at 480. It may be conferred directly by statute or in delegated legislation. Jurisdiction can only be conferred in delegated legislation under the authority of an appropriate enabling statutory provision. A power enabling the making of procedural provisions is not sufficient.
40See chapter 3.2.28The extent of a tribunal’s jurisdiction is, therefore, a matter of statutory interpretation. The ordinary principles apply.
41For example: Horizon Recruitment Ltd v Vincent [2010] ICR 491 (whether employment tribunal with jurisdiction over an agreement had jurisdiction to decide whether it was an enforceable agreement). There are no special rules relevant to jurisdiction. In particular, there is no rule that a tribunal may remedy an apparently obvious omission from its jurisdiction under the guise of interpretation.
42Pendragon plc v Jackson [1998] ICR 215. However, in
OFCOM v Morrissey and the Information Commissioner,
43[2011] UKUT 116 (AAC). the Upper Tribunal accepted for the purposes of argument that there was a presumption that a tribunal could decide a public law issue in the context of a case on private law rights, but held that it did not cover a challenge to the reasonableness of a decision.
44[2011] UKUT 116 (AAC) at [47].2.29Jurisdiction cannot be extended by the consent of the parties,
45Lords Reid and Hodson in Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808 at 820–821 and 828; Woolf LJ in R v Secretary of State for Social Services ex p CPAG [1990] 2 QB 540 at 556; Rydqvist v Secretary of State for Work and Pensions [2002] 1 WLR 3343. whether given positively or by acquiescence,
46Peter Gibson LJ in Aparau v Iceland Frozen Foods plc [2000] ICR 341 at 353. or by estoppel by representation.
47Lords Reid and Hodson in Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808 at 820–821 and 828; Lord Wilberforce in Secretary of State for Employment v Globe Elastic Thread Co Ltd [1980] AC 506 at 519; Lord Hoffmann in Watt (formerly Carter) v Ahsan [2008] AC 696 at [30]. By parity of reasoning, it cannot be restricted by consent. Nor can the tribunal waive a lack of jurisdiction as an irregularity.
2.30However, it may be that the parties can, by agreeing on an issue of fact relevant to the tribunal’s power to hear the case, ensure that the tribunal has jurisdiction. Sedley LJ discussed this possibility in
Clark v Clark Construction Initiatives Ltd48[2009] ICR 718 at [14]. Carter v Ahsan [2008] ICR 82 (cf [2005] ICR 1817) has considered this restricted concept of jurisdiction; and while, as I stress, it has not been an issue before us, attention may need in other cases to be paid to it.I would therefore dismiss this appeal. In doing so, however, I record my own doubt whether the duration of the claimant’s employment was in truth a jurisdictional issue. The point has not been argued. But while it is trite law that the statutory remit of a tribunal cannot be enlarged by consent or by silence (see British Midland Airways v Lewis [1978] ICR 782), whether any one case lies within or outside the tribunal’s jurisdiction is typically a mixed question of fact and law. If the parties disagree about whether there was a full year’s employment before dismissal, the tribunal’s decision on the point will determine whether it has jurisdiction. If they agree that there was, their agreement will ordinarily determine jurisdiction, not by enlarging the statutory remit but by bringing themselves within it. In the latter situation there may be no jurisdictional issue permitting intervention of the tribunal’s own motion. The House of Lords in Carter v Ahsan [2008] ICR 82 (cf [2005] ICR 1817) has considered this restricted concept of jurisdiction; and while, as I stress, it has not been an issue before us, attention may need in other cases to be paid to it.
2.31A tribunal cannot decline jurisdiction that it has, even if it considers that it would be inappropriate to exercise it. In
Kapur v Kapur,49[1984] FLR 920. Bush J said:
… if a court has jurisdiction, as I understand the law, there is no way in which the court could decline jurisdiction on the ground of hardship, apparent unfairness or any other ground.
50[1984] FLR 920 at 922.2.32Whether a matter is a jurisdictional one is determined by its substance rather than the language used in the legislation and there is reluctance to invalidate proceedings for failure to comply with a procedural requirement.
51Lord Bingham in Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910 at [7].2.33The limited scope of a tribunal’s jurisdiction can give rise to boundary issues with related jurisdictions of other tribunals or the courts. For example: the respective roles of the family courts and the Special Educational Needs and Disability Tribunal
52This was analysed by Munby J in X County Council v DW, PW and SW [2005] 2 FLR 508. and the jurisdictions of the employment tribunal and the county court.
53Buxton LJ in Carter v Ahsan [2005] ICR 1817 at [87].2.34A tribunal has no inherent jurisdiction in its strict meaning. However, it may have implied or inherent powers in the wider meaning. These powers are sometimes referred to in terms of a tribunal’s jurisdiction. It is in this sense that a tribunal is sometimes said to have inherent jurisdiction. This use is best avoided in order to prevent confusion.
Issue estoppel
2.35Lord Hoffmann explained the position of issue estoppel in
Watt (formerly Carter) v Ahsan:
54[2008] AC 696 at [30]–[31].Although estoppel in pais and estoppel per rem judicatam share the word estoppel, they share very little else. The former is based upon a policy of giving a limited effect to non-contractual representations and promises while the latter is based upon the altogether different policy of avoiding relitigation of the same issues. It is easy to see why parties should not be able to agree to confer upon a tribunal a jurisdiction which Parliament has not given it. And if they cannot do this by contract, it would illogical if they could do it by non-contractual representations or promises. But when a tribunal has decided that it does have jurisdiction, the question of whether this decision is binding at a later stage of the same litigation, or in subsequent litigation, involves … quite different issues about fairness and economy in the administration of justice.
Issue estoppel arises when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties …
2.36Issue estoppel is subject to the court’s discretion to allow an issue to be re-opened if there are special circumstances that require this in order to prevent an injustice.
55Lord Keith in Arnold v Westminster Bank plc [1991] 2 AC 93 at 109; Lord Hoffmann in Watt (formerly Carter) v Ahsan [2008] AC 696 at [34].2.37The principles of issue estoppel may be modified or overridden by statutory provision.
56Such as Social Security Act 1998 s17 and Child Support Act 1991 s46A.The practical significance of jurisdiction
2.38The significance of matters of jurisdiction has reduced over the years under two pressures. First, the scope of judicial review has widened, allowing review of matters that were not formerly regarded as jurisdictional. Second, the difficulties of drawing the distinctions between the concepts employed by the cases to distinguish between jurisdictional and other matters have become apparent.
2.39For practical purposes, jurisdiction is significant for five purposes. First a tribunal is under a duty to investigate its jurisdiction. Second, it may not waive a lack of jurisdiction as an irregularity. Third, the parties cannot establish jurisdiction by consent, acquiescence, waiver or estoppel. Fourth, the tribunal has no authority to deal with parties, issues or remedies that are outside its jurisdiction. Fifth, a tribunal may be prepared to exercise its discretion to re-open an issue of jurisdiction that has already been decided between the parties.
Validity of decision for purposes of founding an appeal
2.40Although a decision-maker or a tribunal may have made a decision that it was not allowed by law to make, the decision is valid for the purposes of an appeal.
57See Calvin v Carr [1980] AC 574; London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182; Re Gale dec’d [1966] Ch 236; R(I) 9/63 at [20]–[22].The validity of secondary legislation
2.41Legislation may be primary or secondary. Primary legislation is made by Parliament in statutes or Acts of Parliament. Secondary legislation is made under the delegated authority of primary legislation. Regulations relating to the substantive law to be applied by tribunals will almost certainly have been made by a minister. However, it may have been subject to scrutiny by Parliament in two ways. It may have been confirmed by an affirmative resolution or it may have been subject to a negative resolution procedure, under which it is laid before Parliament and is valid unless there is a vote against it.
2.42The significance of the distinction between primary and secondary legislation is that secondary legislation is not valid unless it is authorised by primary legislation. Decision-makers and tribunals have jurisdiction to decide whether or not secondary legislation was authorised by primary legislation.
58Chief Adjudication Officer v Foster [1993] AC 754. It is an error of law for a tribunal to apply secondary legislation that was made without authority.
The enabling powers
2.43If there is a challenge to the validity of secondary legislation, the tribunal must identify the relevant enabling power. The powers under which the legislation is made are set out at the beginning of the legislation. The list used to end with a mop-up provision including ‘all other powers enabling in that behalf’, but this does not cover every possibility. It only does so if that power was expressly relied on or had to be relied on to authorise the legislation.
59Vibixa Ltd v Komori UK Ltd [2006] 1 WLR 2472.2.44Some enabling powers are compulsory
60For example: Child Support Act 1991 s22(4)(b). and have to be implemented. Most enabling powers are not compulsory and do not have to be implemented. But a failure to make secondary legislation, even commencement provisions, may be the subject of judicial review.
2.45Enabling powers may be relatively broad or narrow in their terms. Secondary legislation may fall outside the terms of a narrow enabling provision but within the terms of a wider provision. In those circumstances, the secondary legislation is valid.
61R v Secretary of State for Social Security ex p Rouse (1993) Times 1 February. The limitations on the narrower provision do not control the scope of the wider provision.
2.46The secondary legislation may be based on the combined effect of a number of different enabling powers. In these circumstances, it is not necessary to maintain a strict separation between the powers, unless there is a compelling reason to do so.
62Lord Hope in Banks v Chief Adjudication Officer [2001] 1 WLR 1411 at [43].Interpretation
2.47Having identified the enabling provisions, the tribunal must interpret the enabling power and the secondary legislation. If possible, a tribunal must interpret secondary legislation in a way that renders it valid. This includes, where appropriate, taking account of the Human Rights Act 1998 to interpret both the enabling power and the secondary legislation.
Unauthorised provisions
2.48Secondary legislation is not authorised in these circumstances:
•if it was made by an incorrect procedure:
Howker v Secretary of State for Work and Pensions;
63[2003] ICR 405. •if it is not authorised by the enabling power as interpreted:
Chief Adjudication Officer v Foster;
64[1993] AC 754. •if it was not a rational exercise of the enabling power:
O’Connor v Chief Adjudication Officer;
65[1999] 1 FLR 1200. •if it is in conflict with statutory rights under primary legislation:
R v Secretary of State for Social Security ex p Joint Council for the Welfare of Immigrants,66[1997] 1 WLR 275. •if it violates a Convention right in a way that cannot be cured by the interpretive duty in the Human Rights Act 1998 s3:
Mathieson v Secretary of State for Work and Pensions.
67[2015] 1 WLR 3250. The wider meaning of jurisdiction
2.49In
Garthwaite v Garthwaite,68[1964] P 356. Diplock LJ distinguished the narrow sense from the wider sense of the word. He described this sense in this passage:
In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its ‘jurisdiction’ (in the strict sense), or as to the circumstances in which it will grant a particular kind of relief which it has ‘jurisdiction’ (in the strict sense) to grant, including its settled practice to refuse to exercise such powers or to grant such relief in particular circumstances.
69Garthwaite v Garthwaite [1964] P 356 at 387.This passage is influenced by the issue before the court. The wider sense of the term may be expressed as covering the powers that a tribunal has to further the exercise of its jurisdiction. These powers may be express, implied or inherent.
70See chapter 3.