9. Errors of law and control of fact finding

Abstract

Administrative authorities deciding someone’s legal position must determine what the law is, and find the facts, and apply the law to the facts. This chapter asks how the courts control the exercise of power involved in each of those three elements of the application of the law. The chapter explains the famous decision of the House of Lords in the Anisminic case, and explains why that decision does not support the doctrine of ‘review for error of law’, which is commonly thought to have been established in Anisminic. The chapter explains why a power to apply the law is a discretionary power and concludes with a discussion of the fundamental union (downplayed and sometimes denied by the judges) between judicial review for error of law and other forms of control of discretionary power.