Jurisdiction & Ouster Clauses Flashcards
What are the foundations for judicial review?
Council of Civil Service Unions v Minister for the Civil Service
A decision must affect a person by either:
1. Altering rights/obligations which are enforceable for or against him in private law
2. Depriving him of a benefit or advantage which he previously had or legitimately expected to have
Lord Diplock gave three headings for judicial review:
1. Illegality
2. Irrationality
3. Procedural Impropriety
What was held in the case of Anisminic v Foreign Compensation Commission?
FACTS- Order was sought for British properties that had been sold in Egypt under the Foreign Compensation Act 1950 but this was denied on the basis that legislation required successors in title be on British nationality
DECISION/OUTCOME- The meaning of successors in title had been misconstrued such as there was no legally valid decision, therefore it was null and void and no ouster clause could apply
The case DID NOT remove the distinction between error of law and excess of jurisdiction, instead Anisminic still made non-jurisdictional errors non reviewable, but an error of jurisdictional that wasn’t on the face of the decision
How did the cases of Pearlman try to extend the decision in Anisminic?
Pearlman
* MAJORITY- Installation of a heating system constituted an improvement. The County Court judge made an error of law, therefore the County Courts Act did not apply as there was no jurisdiction. Distinction between jurisdictional and non-jurisdictional errors should be abolished
* DISSENT- The court had no jurisdiction to review the decision of the county court judge, The question was not whether the judge had made a wrong decision but whether he had inquired into and decided a matter which he had no right to consider
What did the case of Page v Hull University Visitor say about Anisminic?
Page
* University Visitor had not acted out of jurisdiction in the dismissal of a lecturer
* Any error of law that may have been committed is not amenable to judicial review
* Anisminic rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires
* Therefore any decision by a tribunal or inferior court can be quashed for error of law BUT this does not apply to Visitors since they apply a peculiar domestic law and create a closed system of administrative justice that should not be exposed or intruded into because it is efficent
What was held in the case of R v Monopolies and Mergers Commission, ex p South Yorkshire Transport Ltd?
FACTS- The court had to determine whether ‘a substantial part of the UK’ under the Fair Trading Act 1973 had been rationally interpreted
DECISION/OUTCOME- Interpretation was rational and there was no ground for review. Interpretation comprised two stages:
1. General appreciation of what substantial means in the present context
2. Considertation of the elements to be taken into account when deciding whether the requirements of the word are satisfied in the case (judgement proceeds on the basis of the criterion as ascertained)
What does the case of Anisminic tell us about ouster clauses?
What was held in the case of R (Privacy International) v Investigatory Powers Tribunal?
FACTS- Court had to determine whether s67(8) of the Regulation of Investigatory Powers Act could exlcude judicial review which said decisions of the tribunal, including on jurisdiction, shall not be subject to appeal or questioned in court
DECISION/OUTCOME
* MAJORITY: Rule of law requires consistency in interpretation, the ouster clause would create a legal island leaving IPT free to interpret without correction
* The court should adopt any tenable reading of a clause to uphold the rule of law (hence here, the wording was for legally sound decisions and provision excluding review on jurisdiction meant whether jurisdictional facts were present)
* Lord Carnworth, obiter, suggested that if a clause violates the rule of law sufficiently courts may refuse to apply it
* MINORITY DISSENT: Rule of law requires independent oversight which the IPT is capable of doing in its area. It does not need to be part of the same system. JR may be available for stricter cases, but not those concerning statutory interpretation
What was the decision in R (Cart) v The Upper Tribunal?
-Decisions of the Upper Tribunal on whether to hear an appeal were amenable to judicial review
-Lady Hale laid out 3 choices on what the appropriate ground of review should be:
1. Scope should be restricted to pre-Anisminic excess of jurisdiction
2. Nothing has changed, judicial review of refusals of leave has always been available
3. We could adopt somewhere in between these two, judicial review should be limited to grounds upon which permission to make a second-tier appeal would be granted
The third choice was adopted, this was rational and proprotionate restriction that still respected the new tribunal system
CART REVIEW NOW ABOLISHED DUE TO 2022 ACT
What did s2 of the Judicial Review and Courts Act 2022 provide?
- Inserted into the 2007 in s11 that decisions of the upper tribunal are final and not liable to be questioned, especially in relation to error and the decision
- However, four grounds remain for judicial review: first two grounds are very narrow and unlikely to arise
- Third ground applies where UT has acted in ‘bad faith’, hard to say how this will be defined
- Fourth ground applies where UT has acted in a ‘procedurally defective’ way that breaches ‘natural justice’. Broadest ground, unclear how this could be defined and the scope of interpretation courts may adopt
What have the most recent cases on ouster clauses demonstrated about S2 JRCA 2022?
R (Oceana) v Upper Tribunal
Tried to argue the fourth ground of appeal and that the provision was not good law and should not be applied
* Ouster clause was held to be sufficiently clear
* Distancing from obiter of Lord Carnworth, emphasis on parliamentary sovereignty and that the supervisiory power of the court is not immune where clear language is used
* Narrow interpretation of the fourth ground, fundamental breach must be ‘so grave as to rob the process of any legitimacy’
R (LA (Albania)) v Upper Tribunal
* Court of Appeal also held the ouster clause to be sufficiently clear
* Distancing again from Carnworth, courts should follow Parliament if the wording is clear
* No clear approach to natural justice and what this would mean, e.g. would procedure extend to reasoning process? Is the focus only on the UT’s process or also the FTT?
How can we say the cases on ouster clauses are consistent with one another?
- Not all ouster clauses are equally offensive to the rule of law, the UT unlike the IPT is connected to the High Court and subsequent courts via a right of appeal
- S2 JCRA is much more clearly drafted than s67(8) RIPA
- However, there is difference in the attitude to what courts should do when an ouster clause is not consistent with the rule of law and how to interpret natural justice
What is the distinction between error of law and error of fact?
Error of Law- Relevant legal rules misunderstood or misapplied,
Error of Fact- Mistake as to the facts of the situation
Not a useful one to make given there is overlap between the two, initial fact finding may be wrong, therefore an error of law leads to an error of jurisdiction
What happened in the case of R (A) V Croydon LBC?
FACTS- the Children Act 1989 provide a local authority must provide accommodation for ‘any child in need’. The appellants claimed to be under 18 but were denied accommodation on the basis they were adults
OUTCOME- The question whether someone is a child for the act is a question of objective fact, therefore subject to ultimate determination by the courts via judicial review. The question of ‘in need’ is evaluative, ‘a child’ is yes or no
