Can you devise an effective ouster clause to exclude a category of decision making from judicial review?

12 August 2021

The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
 

Why is it difficult to oust judicial review?

The rule of law demands that the courts retain a supervisory jurisdiction over the exercise of public power in the form of judicial review. This is in order to guard us all against abuses of power and to ensure that executive action is lawful. It is also a manifestation of the key constitutional principles of the separation of powers and access to justice.

To protect their supervisory role, the judiciary interpret and mediate legislative provisions that might tend towards excluding their involvement in a way that leaves judges’ ability to review the lawfulness of government action intact. In doing so, the courts rely heavily on a presumption that Parliament does not intend to pass laws that would undermine fundamental rights. Legislation purporting to exclude judicial review (sometimes called ouster clauses) is subjected to very strict scrutiny and judges only give full effect to it if Parliament has used the firmest, clearest and most explicit language to demonstrate that clamping down on judicial review really is intended. If the legislation is at all ambiguous or less than explicit, it will be construed very narrowly and restrictively, so as to preserve the availability of judicial review. As the Independent Review of Administrative Law (IRAL) panel concluded in its 2021 report: “Statutory (or regulatory) abrogation of judicial review can only be excluded by the most clear and explicit words in statute and will not be implied” (IRAL report 1.43).

There is undoubtedly a legal fiction in the courts’ interpretive presumption against the exclusion of judicial review. Sometimes it is pretty obvious that the government has deliberately, and in good faith, passed legislation through Parliament with the intention of clipping the judges’ wings (one example might be R (Cart) v Upper Tribunal [2012] 1 AC 663). If they defeat such efforts by applying an extremely narrow interpretation of the extent to which judicial review can be precluded, the judges may be accused of contravening a purist understanding of Parliamentary Sovereignty, whereby Parliament is free to do (or undo) whatever it wishes. On a more nuanced view, however, the need for government action to be subject to proper legal control is recognised as desirable and, indeed, a vital safeguard for democracy rather than a challenge to it.

Yes, Parliament itself provides the principal defence for the rule of law, separation of powers and access to justice. The rubric of British politics is one of mutual respect for institutional competence, comity and self-restraint so “there should be highly cogent reasons for taking such an exceptional course” as to exclude a public function from the scope of judicial review (IRAL report 2.89). But the robust interpretive stance of the courts in determining the limits of their own jurisdiction is an appropriate constraint, and one identified in R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491 as dating back at least to the seventeenth century.

We might take it as a healthy sign of constitutional checks and balances at work that judicial review seems to be unpopular with all political parties whenever they are in power. This is especially so given the very close identification between the executive and Parliament in the UK political system, where it is normal for the party in government to hold a majority of seats in the House of Commons, and therefore to have the ability to pass its legislative agenda through Parliament relatively unimpeded.

So is judicial review unlimited?

Judicial review may be limited in other, softer, ways. Many rules exist to keep it contained and the courts tend to be much readier to recognise them. Two good examples are the standard time limits in Civil Procedure Rule 54.5(1), under which claims must typically be brought “(a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose”, and the significant court fees and legal costs involved. It is also perfectly normal for judicial review to make way for an adequate alternative remedy to be pursued first, for example if a particular decision is required to be challenged through a specific tailored procedure. Admittedly, not all such limits on judicial review are equally effective. For example, the courts are reluctant to accept so called ‘evidential ouster’ clauses instructing them not to inquire into particular matters relevant to a decision being challenged. They also tend to be generous in applying the “sufficient interest” test for who has standing to bring a claim for judicial review. 

Just because an effective ouster clause excluding judicial review is hard to devise, moreover, does not make it impossible. The IRAL panel emphasised the willingness of eight judges across the Divisional Court, Court of Appeal and Supreme Court to uphold the ouster clause in Privacy International, even though that clause was ultimately defeated in the Supreme Court (IRAL report 1.39). Successful drafting may depend very much on the rationale for the measure in a specific context and how constitutionally objectionable the consequences of denying access to judicial review in that context would be. Ouster clauses are sometimes upheld, particularly if carefully tailored to the circumstances and used in contexts where the decision maker being protected from judicial review is itself an independent judicial body (one example is R (G) v Immigration Appeal Tribunal [2005] All ER 165).

It would be radical to suggest that the judges ought never to give effect to ouster clauses. The only context in which that has been seriously suggested by senior judges, R (Jackson) v Attorney General [2006] 1 AC 262, envisaged a constitutional doomsday scenario in which judicial review was being abolished entirely.

Are ouster clauses making a comeback?

Clause 2 of the recently published Judicial Review and Courts Bill (here) may provide a new template for an effective ouster clause. The Ministry of Justice apparently hopes so, arguing that this will “serve as a framework that can be replicated in other legislation… [and] draw a line under decades of uncertainty and confusion as to their proper use” (here). However Clause 2 is a restricted ouster which only removes the High Court’s jurisdiction to review the Upper Tribunal’s decisions on applications for permission to appeal against certain decisions of the First-Tier Tribunal. It does not ’immunise’ executive decision making from challenge – both the Upper Tribunal and First Tier Tribunal are independent judicial bodies. That context for this particular ouster clause may support it being upheld. Whether the same drafting technique would be as effective in other contexts may be another matter. In any event, a recent speech by Lord Chancellor Robert Buckland QC (here) suggests that there is an appetite to breathe new life into wide-ranging ouster clauses and that, whatever the efficacy of Clause 2, we should expect continued legislative experimentation in this area.

A version of this blog is also available on Lexis®PSL.

Further information

Kingsley Napley LLP regularly represents parties in judicial review challenges. Our lawyers also blog regularly about public law matters. Follow our Public Law blog for the latest commentary.

Should you have any questions about the issues covered in this blog, please contact Nick Wrightson or a member of our Public Law team.

 

About the Author

Nick Wrightson is a Partner in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries and complex inquests. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.

 

Latest blogs & news

Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)

The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.

New guidance encourages judicial review practitioners to be concise, succinct and prepared

Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.

Can you devise an effective ouster clause to exclude a category of decision making from judicial review?

The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.

The UK Supreme Court has confirmed the principles for judicial review of policies

R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38

Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.

Judicial Review Reform – waiting for the sting

Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.

Government Launches Public Consultation on Reforms to Judicial Review

On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.

Supreme Court rules that Nigerian communities can have their case against Shell heard in the English courts

This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.

Striking a balance or tipping the scales? The Independent Review of Administrative Law and the possible reform of Judicial Review

On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’

Office for Students refusal to register higher education provider unlawful due to failure to delegate and ‘secret policy’

The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.

International Court of Justice and UN General Assembly do not alter the outcome of the Chagos Islands challenge

In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.

Voter ID laws and the way courts interpret legislation

Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.

The High Court confirms that unincorporated associations may participate in both judicial review claims and statutory challenges

Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.

What does the new government mean for public lawyers?

Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU. 

Enemies of the constitution? The words of those attacking independent judges are corrosive and wrong

Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.

Since prorogation ‘never happened’ what happens next?

The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.

When politics and law collide: The prorogation judicial reviews

Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.

“WhatsApp” with Dominic Grieve’s motion for Brexit communications?

Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.

High Court finds Mayor’s Congestion Charge decision did not involve unlawful discrimination

On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London [2019] EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019

 

London Climate Action Week: Saving Londoners from nitrogen dioxide, one judicial review at a time

According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.

KN Green Week: Can law help save the world?

We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

Skip to content Home About Us Insights Services Contact Accessibility