Lunges, parries & the ouster clause

Ouster clauses are provisions inserted into legislation to prevent judicial review challenges that target particular decisions by public bodies. They exclude the common law supervisory jurisdiction of the courts. The basis for them is that, under our constitution, Acts of Parliament are supreme and Parliament can curtail the jurisdiction of the courts if it so chooses.

How do the courts respond to ouster clauses?
 

The courts have three options when confronted with an ouster clause; namely acceptance; a constitutional ‘parry’; or, at least in theory and in extremis, a constitutional ‘lunge’.

The constitutional parry involves the courts subjecting the clause to very strict scrutiny, and judges only giving effect to it when Parliament has used the firmest, clearest and most explicit language to demonstrate that clamping down on judicial review in the relevant context really is intended. In their institutional role as the masters of legislative interpretation, the courts can construe the ouster narrowly and restrictively to preserve judicial review. They can justify doing so on the basis of a (perhaps questionable) legal presumption that Parliament generally cannot be taken to have intended to pass laws that would undermine fundamental rights. Another option is for the courts to determine that the ouster simply does not apply because the decision challenged is outside the decision-maker’s jurisdiction and therefore falls away before the court even has to turn to interpreting the ouster clause.

If the constitutional parry involves deflecting or sidestepping the ouster by appealing to institutional comity and self-restraint, the constitutional lunge would entail open confrontation. Its basis would be that the rule of law requires the courts to retain their supervisory jurisdiction over important exercises of public power to guard against abuses and ensure that executive action is lawful. If this principle were to be sufficiently imperilled — for example by an ouster clause purporting to exclude judicial review altogether — the courts might defy Parliament and ignore the clause. This has never happened, but has been acknowledged obiter dicta, notably by Lord Carnwath in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22.

The latest development
 

Section 2 of the Judicial Review and Courts Act 2022 created an elaborate ouster clause to prevent judicial review of certain applications for permission to appeal against decisions of the First-tier Tribunal. That clause was recently given effect by the High Court in R (on the application of Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin), [2023] All ER (D) 56 (Apr) (see also ‘Ouster clauses: left out in the cold?’, NLJ, 7 July 2023, pp11-12).

Mr Justice Saini said the clause squarely applied to the decision being challenged and the point of the legislation was to prevent judicial review of such decisions. The claimant conceded that the language of the clause was clear. In the circumstances, it could not be parried. Saini J went on to describe as ‘ambitious’ the claimant’s submissions inviting him to use the constitutional lunge (ie to find that ‘the High Court had the power at common law to ignore clear primary legislation ousting judicial review’). He decided to accept the ouster clause as a binding and effective partial exclusion of the common law supervisory jurisdiction of the High Court.

The future of ouster clauses
         

Oceana is not especially significant in itself, because the exclusion of judicial review to which it relates does not significantly imperil the rule of law. As Professor Mark Elliott has observed in Public Law for Everyone, the decision relates to a narrow and partial exclusion of judicial review in a context where the claimant had had access to an expert tribunal. However, on enacting the ouster, the former Lord Chancellor Robert Buckland KC reportedly said: ‘This is a template or prototype. But it would be wrong of me to sketch out what scenarios a subsequent ouster clause might seek to fit.’

The real concern, therefore, is that Oceana is proof of concept for a particular form of ouster clause, and the government is already identifying other opportunities to exclude judicial review using this ‘template’. An example already exists in the form of the Illegal Migration Act 2023, which contains ouster clauses very similar to the one considered in Oceana. While there is no guarantee that the template will always work, because courts may do more to parry the same wording deployed in more sensitive contexts, the potential risk is that ouster clauses are becoming normalised.

The report of the Independent Review of Administrative Law published in March 2021 rightly characterised ouster causes as exceptional and concluded that ‘there should be highly cogent reasons for taking such an exceptional course’. Their use erodes constitutional checks and balances. Our constitution relies on parliamentarians exercising good judgment and extracting an appropriate political price from governments that enact ouster clauses. If such clauses become more common, tensions between Parliament and the courts will increase as mutual respect between our institutions declines. The rule of law may someday be sufficiently imperilled — either by a single sweeping ouster clause or by the cumulative effect of the routinisation of lesser ouster clauses — to justify a constitutional lunge. If the courts ever attempt such a daring and ‘ambitious’ move, it will be a clear sign of impending constitutional crisis.

This article was first published by the New Law Journal and can be found on its website: www.newlawjournal.co.uk

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