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Law reform role of judges - ouster and finality clauses

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"Ouster" clauses




"Finality" clauses

An Ouster or Finality Claus is a provision in an Act of Parliament to restrict or eliminate Judicial Review.


Parliament uses these clauses to bring finality to decisions that they wish to be determined in the way they have laid down without delays or without an interpretation that does not meet the political expectations of the executive.


For example, Parliament may not wish long protracted public enquiries when road developments are planned.


Examples of expressions used by Parliament

It is sometimes provided by a particular statute that a decision taken under it ‘shall he final’. or ‘shall he final and conclusive’, or ‘shall not he appealable’, or ‘shall not he questioned in any legal proceedings whatsoever’.


Such expressions are known as ‘finality’ or ‘ouster clauses because they make the original decision final by attempting to oust the jurisdiction of the courts.


Response of the courts

Courts will sometimes accept ouster clauses

For example, under the Town and Country Planning Act 1971 a person aggrieved by the Secretary of State’s handling of a planning application could apply to the High Court within six weeks, the courts will not consider appeals outside that time limit, as was intended by Parliament.


The courts interpret ouster clauses very narrowly


Judicial Review is not an appeal

Traditionally, the courts have interpreted these expressions narrowly so it means that, although there is to he no further appeal, the decision is still subject to judicial review, which is not an appeal.


In other words, the decision under attack may be final on the facts but it is not to he regarded as final on the law.


For example, a finality or ouster clause will not necessarily prevent the quashing of a decision by a quashing order on the grounds of excess or abuse of power, breach of the requirements of natural justice or error of law.


Courts will not preclude the making of a declaration

In R v Medical Appeal Tribunal (ex parte Gilmore) [1957] the tribunal’s decision was quashed for error of law even though the statute in question said that the tribunal’s decision ‘shall he final’. Denning LJ said:

"I find it very well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words.”

If expression is clear it will be respected

In South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] PC it was held that words in a Malaysian statute that ‘an award ... shall he final and conclusive, and no award shall he challenged, appealed against, reviewed, quashed or or called into question in any court of law” were clear and explicit enough to exclude the remedy of certiorari for error of law.


Arbitrary and uncontrollable power

The reason fur the restrictive approach towards any attempt to exclude judicial remedies is the fear of the ordinary courts of law that public authorities and tribunals might otherwise acquire arbitrary and uncontrollable power.


The courts seek to prevent this by means of a presumption that Parliament always intends statutory powers to be exercised lawfully.

Courts not included

Only applicable to public authorities and bodies, not other courts

Desirable though this approach is, it must he remembered that it can he adopted only against public authorities and tribunals.


It probably cannot be used against an inferior court of law because Parliament must be taken to have assumed that a court of law is competent to decide questions of law as well as questions of fact. It cannot he used against a superior court for the same reason Re Racal Communications Ltd [1980] HL.

The effect on superior courts

Moreover, the decisions of a superior court of record are not subject to judicial review, with the exception of decisions of the Crown Court on non-indictable matters.

It must also be remembered that the understandable judicial aspiration to prevent the acquisition and exercise of arbitrary and uncontrollable power by an unaccountable executive must yield to any express Parliamentary instruction to the contrary.


The presumption that powers conferred by Parliament are intended to he exercised lawfully can he rebutted by express statutory words so that the exercise of particular powers becomes ‘judge-proof’.


For example, the Interception of Communications Act 1985 creates a Tribunal with a function of investigating and, if appropriate. remedying. complaints that postal or telephonic communications have been unlawfully intercepted.


The Act provides that the decisions of the Tribunal (including any decisions as to their jurisdiction) shall not he subject to appeal or liable to he questioned in any court (s. 7(8).

Parliamentary success with the word "jurisdiction"

The use of the word "jurisdiction" appears to constitute a successful attempt to exclude even the effect of the Anisminic case from the interpretation of these two statutes.


The result is that the ‘decisions’ referred to, whether they are wrong or a complete nullity, are not only unappealable but also immune from challenge by way of judicial review and beyond the reach of quashing orders.


[Ingham: The English Legal Process 8th ed]

Ouster clauses and the constitution

Constitutional effect not considered

When the courts have been asked to judge the effect of such clauses, they felt they could not directly pronounce upon their constitutional validity.


In Anisminic, they neatly turned the tables on parliament by making the assumption that no reasonable parliament could have intended a body of its own creation to act outside the "jurisdiction" that parliament had itself set for it.


Limits to Parliamentary supremacy

In a lecture in 1994, Lord Woolf, in the context of a discussion about ouster clauses, said that there may be situations in which the courts, in upholding the rule of law, may have to "take a stand".


In those circumstances, he said, there were some "advantages in making it clear that ultimately there are even limits on the supremacy of parliament which it is the courts' inalienable responsibility to identify and uphold".


Asylum seeker case, Parliament defeated by the courts

The House of Lords prevented a minister from cutting off an asylum seeker's income benefits, which he was entitled to do on the refusal of her application for asylum.


The reason was that the applicant had not yet received notice of the refusal of her application. Such a practice offended the constitutional principle of the rule of law because she was denied the possibility of access to the courts to challenge the decision before it took effect.


Dicey and Berlin on tyranny

It is hardly surprising that the rule of law should weigh more heavily on the constitutional scales today than it did in Professor Dicey's times.


As Isaiah Berlin wrote, in years to come the 20th century will be known mainly for the rise and rule of the great tyrannies, in Nazi Germany and Soviet Russia.


If any lesson has been learned from those tyrannies, it is that democracy must be defined as much by what governments should be permitted to do in the name of the people, as what they should be prevented from doing in the name of human rights.


Courts show no sign of giving in to ouster clauses

It is no longer self-evident, therefore, that our courts would inevitably concede parliament's right to ride roughshod over fundamental rights and the newly discovered constitutional principles.


And the issue that is most likely to provoke the courts finally to question parliament's paramount rule is an attack on the courts' own constitutional duty to hear out people claiming injustice.


Nozick and the constitution.

The American philosopher Robert Nozick once said that unwritten constitutions are not worth the paper they are written on. That statement overlooks the enduring balance between parliament and the judiciary over the years in this country.


Parliament should be cautious about upsetting that balance by undercutting the constitutional power of the higher courts to review the implementation of the law.


In the end, the judges may not have the stomach to strike down statutes. However, their temptation to do so will be great. And that they have the power to do so is by no means out of the question.

House of Lords secures victory for judges March 2004


News story here

The government announced plans to deny asylum seekers the right to appeal decisions in the High Court through judicial review if their asylum claims were rejected.


Lord Woolf made a scathing attack on the proposals during a speech at Cambridge University.


The proposals were dropped by the government.

The legislation proposed preventing the right to appeal asylum .


Proposals for reform.

As long ago as 1932 it was recommended that ouster clauses in statutes ‘should he abandoned in all hut the most exceptional cases’ (Report of the Committee on Ministers’ Powers, 1932). But nothing was done by Parliament.


In response to this proposal, to set aside such clauses, and continued reliance was placed on them.


In 1957 a more fundamental recommendation was made to the effect that the prerogative remedies should not he ousted by statute (Report of The Committee on Tnbrinals and Enquiries, 1957).


Legislation to implement this proposal was contained in the Tribunals and Inquiries Act 1958. But the legislation only applies to ouster clauses embodied in pre 1958 statutes.


However, it does at least make ouster clauses clearer targets for attack. The rule is now to be found in s. 12 of the Tribunals and Inquiries Act 1992.


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