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"Ouster" clauses
or
"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.
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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.
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Response of the courts |
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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.
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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.
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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.”
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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.
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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.
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Courts not included |
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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.
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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).
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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] |
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Ouster clauses and the
constitution |
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Constitutional effect not considered
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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.
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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".
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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.
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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.
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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.
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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.
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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 .
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Reform |
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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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