Frontiers of Judicial Review: Ouster Clauses

Question 1

what is the key question of frontiers of judicial review

Answer 1

• can parl (under UKG) control use its legislative supremacy to shield administrative decision making from review by the courts?
  -links to Parl Sovereignty + Rule of law

Question 2

give an example of Parl trying to limit JR

Answer 2

-making threshold for permission for JR higher
-Rwanda Bill

Question 3

how did parl try to use an ouster clause to limit JR with the Rwanda Bill

Answer 3

-oust JR by saying anytime anybody tries to challenge the legality of an immigration decision in relation to Rwanda (on the basis that Rwanda may be unsafe) that the courts must refuse to hear it

Question 4

why would Parl use ouster clauses against the courts’ JR supervisory powers over public decision making

Answer 4

so their decisions couldnt be scrutinised

Question 5

what is the case authority for how courts have responded to gov ouster clauses

Answer 5

-Anisminic (1969)
-challenge to FCC decision to reject application for compensation under a statutory scheme

Question 6

explain Anisminic (1969)

Answer 6

-challenge to FCC decision to reject application for compensation under a statutory scheme
-FCC rejected application on basis that original owner wasnt British (as s.4 FPA 1950 stipulated)
-Lord Reid found illegality issue but s.4(4) was an ouster clause saying decisions by FCC couldnt be heard in any court of law
-held that ouster clause did NOT exclude court’s supervisory jurisdiction as it only protected where the FCC had acted lawfully/in the scope of its powers

Question 7

what was the key legacy that arose from Anisminic (1969)

Answer 7

-Parl must use express wording should it wish to protect unlawful decisions

Question 8

what is the case example that goes beyond Anisminic (1969)

Answer 8

-Privacy International (2017)

Question 9

what happened in Privacy International (2017)

Answer 9

-challenge to Investigatory Powers Tribunal’s interpretation of s.5 of the Regulation of Investigatory Powers Act 2000 (concerning warrants to authorise intelligence surveillance)
-did s.67(8) RIPA exclude JR from IPA’s decision? yes (CoA) then NO(SC)
-CoA said language of ouster clause was materially different to s.4(4) in Anisminic (1969) as it included if decision was unlawful
-SC sad s.67(8) RIPA not explicit enough

Question 10

who were the two main orbiters disagreeing on ouster clauses in Privacy International (2017)

Answer 10

-Lord Canforth (+Lady Hale + Lord Kerr)
-Lord Sumption

Question 11

what did Lord Canforth argue in Privacy International (2017)

Answer 11

-defended the jurisdiction of courts to determine the constitutionality of ouster clauses with reference to the rule of law
-even if they were expressly worded

Question 12

what did Lord Sumption argue in Privacy International

Answer 12

-rule of law applies as much to the courts as anyone else
-effect must be given to parliamentary legislation (upholds parl sovereignty)

Question 13

what was the key conclusion in 2021 report, Independant Review of Administrative Law

Answer 13

-Parl could not exclude judicial review generally, would be contrary to rule of law
-Parl could oust/limit jurisdiction of courts in particular circs if sufficient justification BUT must confront hostility from the courts