Admin Law Ouster Clause Essay

Senior judges occasionally find it hard to resist the temptation to speculate about whether parliamentary sovereignty is ‘absolute’ — which, of course, amounts to speculating about whether Parliament is really sovereign at all. One of the principal triggers for such speculation is the question whether Parliament is capable of ousting the courts’ judicial review jurisdiction. Perhaps most notable in this regard is Lady Hale’s speech in R (Jackson) v Attorney General [2005] UKHL 56, delivered not long after the Government, yielding to intense criticism, removed an ouster clause from what became the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The courts, said Lady Hale, may reject an attempt by Parliament to ‘subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny’. Meanwhile, in A v B [2009] EWCA Civ 24, Laws LJ said that: ‘It is elementary that any attempt to oust altogether the High Court’s supervisory jurisdiction over public authorities is repugnant to the constitution.’

Against this background, R (Privacy International) v Investigatory Powers Tribunal [2017]EWHC 114 (Admin), about which my colleague Dr Paul Daly has also written, perhaps comes as something of a damp squib — for in it, the Divisional Court accepted that Parliament had succeeded in ousting the High Court’s judicial review jurisdiction. Does this mean that the judges’ bark is invariably worse than their bite when it comes to ouster clauses? The answer, it seems, is that it depends on the judge — as the disagreement between the President of the Queen’s Bench Division, Sir Brian Leveson, and Leggatt J demonstrates.

The claimant wished to seek judicial review of a decision taken by the Investigatory Powers Tribunal (‘IPT’). However, section 67(8) of the Regulation of Investigatory Powers Act 2000 provided that:

Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.

Section 67(9) went on to require the Secretary of State to provide for appeals to a court in respect of the exercise of some of the IPT’s functions. However, section 67(9) was never brought into force, meaning that the Secretary of State was never required to provide for appeals; and the discretion to provide for appeals conferred by section 67(8) was not once exercised. (The position is now different, a statutory right of appeal having been created by the Investigatory Powers Act 2016.) Against this background, the Court had to determine whether section 67(8) really precluded judicial review of the IPT.

It is worth noting that the language of section 67(8) of the 2000 Act is similar, albeit not identical, to that of section 4(4) of the Foreign Compensation Act 1950 as originally enacted. That provision — which provided that ‘The determination by the [Foreign Compensation] Commission of any application made to them under this Act shall not be called in question in any court of law’ — was of course at the centre of the House of Lords’ seminal decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. The Appellate Committee concluded in Anisminic that section 4(4) of the 1950 Act did not preclude judicial review, holding that ‘determinations’ were protected only if they lay within the Commission’s jurisdiction. In Privacy International, the Court rightly placed little emphasis on the additional words — ‘including decisions as to whether they have jurisdiction’ — in the 2000 Act. As counsel for the claimant put it, the effect of those words was surely only ‘that a lawful decision by the IPT that it did or did not have jurisdiction in a particular case cannot be impugned’.

Sir Brian Leveson P ‘s starting point was that while it is ‘not in issue that Parliament is able to oust the jurisdiction of the court provided it does so in appropriately clear terms’, the courts ‘will presume against the conferment of such a power save in the clearest cases’. The question then became whether ‘appropriately clear terms’ had been used. Given the authority of Anisminic, the answer to that question might have seemed obvious: if section 4(4) of the 1950 Act was insufficient, so too must be the very similarly worded section 67(8) of the 2000 Act. However, this linguistic similarity was considered to be of only limited relevance by the President. Nor indeed were the (limited) semantic differences between the two provisions considered to be of paramount importance. Rather, he adopted contextual approach, opining that ‘the proper approach to interpretation of this (or any) statutory provision is not simply a matter of looking at the words and comparing them with other words used in another statute where the context might be entirely different’. Applying this approach, he concluded that:

There is a material difference between a tribunal — such as the Foreign Compensation Commission whose ‘determination’ was in issue in Anisminic, [the Special Immigration Appeals Commission], or the Upper Tribunal (when dealing with appeals from the First-tier Tribunal) — which is adjudicating on claims brought to enforce individual rights and the IPT which is exercising a supervisory jurisdiction over the actions of public authorities. In the former case there are compelling reasons for insisting that a decision of the tribunal is not immune from challenge and that, if the tribunal follows an unfair process or decides the case on a wrong legal basis, the decision may be subject to judicial review by the High Court.  The need, and indeed the justification, for such judicial review is far less clear where the tribunal (here the IPT) is itself exercising powers of judicial review comparable to those of the High Court.

Leggatt J’s judgment forms an interesting counterpoint to Sir Brian Leveson P’s. (The former did not formally dissent from the latter’s conclusion as to the effect of section 67(8), but he made his disagreement plain.) Indeed, the contrast between the two judgments reveals — in two respects — what is inevitably going on, at least beneath the surface, when courts confront ouster clauses. First, the court is making a determination about what the rule of law requires — and thus about how constitutionally offensive the unavailability of judicial review would be in the context of the case.  Second, the court is deciding whether the constitutional pull of the rule of law is strong enough to justify reading the ouster clause counter-textually so as to preserve judicial review. (Looked at from the opposite end of the telescope, the court is determining whether the constitutional pull of the principle of parliamentary sovereignty is sufficient to invest the statutory text with the capacity to override the rule of law.) Leggatt J, it appears, differed from the President on both of these matters.

As to the first, he was unpersuaded that the claim exerted by the rule of law was weakened by the mere fact that the IPT’s jurisdiction was supervisory. The nature of the IPT’s jurisdiction notwithstanding, Leggatt J’s view was that the rule of law requires the IPT to be susceptible to judicial oversight — both in order to provide ‘a means of correcting legal error’ and because ‘[t]he rule of law requires that the law should, so far as practicable, be consistently interpreted and applied’. Permitting the IPT to operate as a ‘legal island’ would be inimical to this aspect of the rule of law.

Leggatt J was thus firmly of the view that reading section 67(8) as excluding judicial review would (given the unavailability of appeal) affront the rule of law. The question then became whether the constitutional pull exerted by the rule of law was strong enough to justify reading the statute in a way that preserved judicial review. Leggatt J thought that it was. His reasoning on this point is particularly interesting. On one level, his approach is orthodox, implying a disagreement only of degree with Sir Brian Leveson P. For instance, Leggatt J said that ‘statutes are interpreted on the understanding that Parliament does not intend to insulate a court or tribunal from it’ and that he was ‘extremely reluctant to attribute to Parliament an intention to achieve a result which would be so clearly inconsistent with the rule of law’. So far, so orthodox. However, the following passage from Leggatt J’s judgment is particularly telling, and strikes a rather different note:

Although it has repeatedly been said that Parliament could, in principle, exclude the possibility of judicial review by using language of sufficient clarity, it is striking that no language so far used (unless it be that in the present case) has been held to be sufficiently clear to have that effect.  Moreover, it is difficult to conceive how Parliament could have been more explicit than it was in section 4(4) of the Foreign Compensation Act 1950, other than by referring to ‘purported determinations’ rather than simply ‘determinations’ of the tribunal.

It is not entirely clear from this paragraph just how difficult Leggatt J considers the exclusion of judicial review to be. It may be that he simply intends to suggest if Parliament had used even more specific language — e.g. by excluding review even of ‘purported determinations’ — it would have been more likely to succeed in ousting the courts’ jurisdiction. On the other hand, the first sentence of the passage set out above is intriguingly phrased, and might be taken at least to signify some doubt as to the veracity of the familiar proposition — found, of course, in Sir Brian Leveson P’s judgment — that Parliament can preclude review if only it uses sufficiently clear language. It is clear, at any rate, that for Leggatt J Parliament can face a very steep uphill struggle if it wishes to formulate legislation so as to shield decisions from judicial review, the exact severity of the incline being a function of the degree of the threat to the rule of law presented by the ouster provision taken in its statutory and constitutional context.

Ultimately, it seems to me that the difference between the two judges in Privacy International reduces to a disagreement about the relative constitutional weight to be accorded (on the one hand) to parliamentary sovereignty and hence to the statutory text, and (on the other hand) to the rule of law and hence to the preservation of judicial review in the face of the ouster clause. Leggatt J makes it tolerably clear that, as far as he is concerned, the relative weight of the rule of law can, in relevant circumstances, be so strong as to come close to overwhelming the statute. But the question whether the rule of law can actually overwhelm the statute — in the sense of licensing straightforward judicial disobedience to it — is still unanswered. That it should remain so is perhaps as inevitable as it is desirable.

The Court of Appeal gave judgment in this case in November 2017. For discussion of the Court of Appeal’s decision, see this post.

Tags: administrative law, constitutional law, judicial review, ouster clauses, rule of law

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Jurisdiction of Judicial Review 'The reality is that the conception of legality within judicial review is used as a label to cover a variety of more specific grounds of challenge relating to the rule of law.' (Craig). This is the first of Diplock's three grounds of JR in GCHQ: i. Illegality; ii. Irrationality; iii. Procedural impropriety. Such review therefore inquires as to whether the actions of a public body were legal - whether the body had the power to act in the way it did by virtue of the type of body it is.
 It is either within the body's limited scope of legal decision-making, if it is outside (ultra vires).
 Craig: a jurisdiction is a legal power to decide a claim or issue with legal effect. Jurisdiction therefore relates to whether the court can review the decision at all. This is of fundamental importance because of the underlying doctrine regarding how far the judiciary should be able to review the decisions of a public body. Distinction:

1. Jurisdictional error (review): o This is where a public body strays out of a subject area, type of issue, type of question, that it has no authority to decide with legal effect.

2. Review of discretion (appeal): o Review of discretion concerns the merits of a particular decision. This is not within the jurisdiction of the court, since it is not for them to review the substance of a decision. X and Y factors: X factors relate to the preconditions that trigger executive jurisdiction for a particular action; Y factors are statements as to what the executive can actually do.
 There is an issue that the executive, itself, decides whether the X factors are satisfied. o As such, this gives rise to issues regarding institutional competence - who is better placed to decide the X and Y factors?
Institutional competence: which body should make the decision?
Anisminic illustrates the underlying tension between the competence of executive bodies, and the purview of the court.
 The issue was essentially one statutory interpretation, with the Foreign Compensation Act 1950 providing that 'the determination by the commission of any application made to them under this Act shall not be called in question in any court of law.' o However, the decision was held as reviewable.
 Whilst the courts act on the basis that they are effectuating the will of Parliament in reviewing public bodies, that purpose does not have inherent limits as to the extent of review.

Reasons for the Courts to display deference:

1.

Lack of expertise: o Subject matter may be specific and sensitive - the risk is that the court makes decisions about that subject area with ignorance or false assumptions of the context/the area.

2. Public resources: o Courts have to be wary that order result in public expenditure - public bodies cannot be treated in the same way as private parties.

3. Understanding of statute policy: o It may well be the case that, by virtue of their expertise, executive bodies (especially specialist ones) have a better understanding of the policy under the statute. Reasons for the Courts to be more intrusive:

1. Uniformity under the law (risk of unpredictability): o Definition of terms and so on may differ in particular contexts, but it is unsatisfactory for the same word to have different meanings, and for inconsistency to carry legal effect. o Interpreting X factors differently means applicants are treated differently.

2. Restraint of public bodies: o The policy concerns can be said to go the other way - need to have some limitations on the ambit of public bodies, and it is of concern that public bodies are able to make decisions with legal effect. Most of the contention is in attempting to find a middle ground.
   Notable that remedies in administrative law are discretionary.

Errors of Law The collateral fact doctrine: Based on established kinds of cases where the courts are permitted to intervene.
 As such, decisions found to be of a kind recognised as reviewable were considered jurisdictional; those that were outside this recognised ambit were non-jurisdictional. Craig: 'what the preliminary or collateral fact doctrine sought to do was to distinguish those elements within the bracket which could be regarded as conditioning the power of the tribunal to go and consider the merits from the merits themselves.' i.

ii.

Jurisdictional errors. o Errors relating to the type, or scope, of a case - if the type or scope of the case was within the scope of that tribunal, then the subsequent decision could not be reviewed. Non-jurisdictional errors. o Errors relating to the truth or detail of a case.

This test was, previously, the orthodoxy - however, it was constantly used as result-based reasoning.
 Whenever the Courts wanted to review a decision, they held it as jurisdictional; when they wanted to leave it alone, they held it as non-jurisdictional.

o

For example, in Lane's dissent in Pearlman v Keepers, he argued that all the judge had done in the case was to 'come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law.'

However, the doctrine is fundamentally flawed.
 The distinction between types and incidences is impossible to draw. o The 'type' of case can only be determined with reference to instances of the type. o Only really useful when the answer is obvious; yet, in such cases, do not need it in the first place.
   Wade and Forsyth made these points: the concept of jurisdictional error has been stretched to breaking point, and 'it requires only a simple verbal manipulation to represent any error of law as the result of the tribunal asking itself a wrong question or imposing some wrong requirement… any error of law could be shown to involve an excess of jurisdiction.' Denning in Pearlman was honest about this and suggested the test should be discarded: 'so fine is the distinction that in truth the High Court has a choice before it whether to interfere with an inferior court on a point of law. If it chooses to interfere, it can formulate its decision…'
 He argues that it is intolerable that an individual's rights should depend on the judge that tries the case. Instead, 'no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends'. Change in doctrine: Anismic, though not formally abolishing the collateral fact doctrine, cast it into serious doubt.
 'A tribunal may quite properly validly enter upon its task and in the course of carrying it out make a decision which is invalid - not merely erroneous. This may be described as 'asking the wrong question' or 'applying the wrong test'. o Thus, it appears that the Courts could be more intrusive in considering errors within the jurisdiction of the particular administrative body, rather than there merely being an exclusion of a judicial role once properly within the scope of decision making.
 Elliot: '[this] laid the foundation for such a step [abolition of jurisdiction distinction] to be taken]'.
 As such, Lord Reid's non-exhaustive lists of reasons for the court to conclude nullity undermined the jurisdictional/non-jurisdictional distinction. Ouster Clauses: Ouster clauses were important in this case since, as seen earlier, the relevant Act excluded Courts calling into question any determination by the Commission.
 As such, it was claimed that there was no 'determination' at all, it was instead a mere nullity - an action with no legal effect. Lord Reid followed this in saying that the word 'determination' in the statute does not include everything which purports to be a determination, but which is in fact no determination at all.
 As such, it read in a jurisdictional requirement to the Act, that decisions are 'determinations' when they have legal effect (when they are within jurisdiction).

Endicott: there is much value in finding that a 'determination' of a body may not be a 'determination', bit it remains unclear how far this can be taken.

It is clear that the Courts will be very reluctant to giver effect to an ouster clause.
 Such issues go to the root of the institutional competence contention - where legislation has specifically excluded the intervention of the Court, for them to the do so is particularly intrusive. o At the same time, it is not satisfactory for Parliament to merely block the jurisdiction of the Court.
 Circularity - it is the job of the courts, constitutionally, to decide matters of law and interpret statues. Denying this makes such a clause practically unenforceable.
 South East Asia Fire shows that these clauses are potentially effective. o However, the reasoning in this case relied on the basis of certain errors of law being non-jurisdiction, a view now undermined by Page). It seems that the best way to oust the effect of the court's jurisdiction is to strike out the availability of remedies. This leave the legally investigative nature of the courts functions intact, but takes away its teeth. There is a particular difficulty with ouster clauses in the human rights context.
 It should be noted that the cases seeking to restrict the court's jurisdiction are pre-HRA.
   The preclusion of review may interfere with Article 6 ECHR, requiring that an independent tribunal must make a decision. o This will be relevant where the initial decision-maker does not qualify as independent under the Strasbourg jurisprudence. o Nevertheless, it is clear that the Courts are willing to interpret broadly to prevent a constitutional clash Expansion of the error of law following Anisminic: Re Racal Communications considered Anisminic as having abolished the collateral fact doctrine.
 Diplock: 'the break-through made by Anisminic was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished.' o As such, appeared that all errors of law, operative or not, could ground a quashing order for the decision of the tribunal/body.
 Similarly in O'Reilly v Mackman, Diplock claimed that: '[Anisminic] has liberated English public law from the fetters that the courts had therefore imposed upon themselves… [which consisted in] drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction and error off law committed by them within their jurisdiction.' o However, Lord Reid did still held a distinction between: (i) mistakes of law that make a decision a nullity, and (ii) mistakes of law which do not make a decision a nullity. o The problem was that he offered no guidance as to distinguishing between the two errors, leading to an interpretation that a determination is null and void if it involves any misconstruction/irrelevant consideration as to the basis of the decision. Re Racal led to a distinction between different types of bodies, giving an institutional approach as to who could competently decide questions of law and questions of fact:

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