ouster clauses Flashcards
what is an ouster clause?
- statutory device aiming to remove courts jurisdiction, constitutionally problematic
R (oao Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, read: Lord Carnwath’s judgment.
‘A determination vitiated by any error of law, jurisdictional or not, was to be treated as no determination at all. It therefore fell outside the reference in the ouster clause to a “determination of the commission”. In other words, the reference to such a determination was to be read as a reference only to a legally valid determination’: [105]
cart v upper tribunal 2011
- ‘Judicial review can only be excluded by “the most clear and explicit words” para 31
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 case facts
Anisiminic brought judcial review in decision on basis that error of law in interpreting the meaning of successors in tittle
- CA held that any question of JR was barred in accodance to ouster clase at s4(4) of the 1950 Act which states that the determination by the commission of any application made to them under tgis act shoiuld not be called to question in any court of law
Decision:
Appeal alowrd - Tribunal misconstrued term successor in title so as to nullfiy decision
- No legally valid decision t9o which ouster clause cna apply
- Lord Reid: If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law.’
- Lord PEARCE: entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament.entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament.
privacy international v investigatoy powers tribunal 2019
- ‘hostile attitude’ adopted by the court in relation to ouster clauses
- Lord Carnwath sought to avoid allowing the IPT, through its judicial powers, to create ‘“local” law’ immune from review’ (at [112]
- [I]t is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’: [131]
-It is still the underlying assumption that Parliament does not intend to exclude judicial review for legal errors as judicial review upholds the rule of law by ensuring the law is consistently interpreted and applied
Saini J in Oceana v upper tribunal 2023
- However, the rule of law applies as much to the courts as it does to anyone else.
- there is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen.
s.11A, Tribunal, Courts and Enforcement Act 2007
3a. the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision;
3b. the supervisory jurisdiction does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision.
R (oao Cart) v Upper Tribunal [2011] UKSC 28, [52-56]
Lady Hale outlined three possible routes open to the Supreme Court (at [38]):
1. confine review to cases in which the tribunal exceeds its lawful jurisdiction, causes a denial of fundamental justice, or similarly exceptional circumstances (at [39–44]);
2. continue as before, holding judicial reviews of refusal of leave to appeal without limiting the permissible circumstances (at [45–51]); or
3. a middle way, namely, allowing reviews to the Court of Appeal according to the second-tier appeal criteria—i.e. that the review either (a) raises an important point of principle or practice, or (b) provides some other compelling reason for review (at [52–56]).
- According to Lady Hale the ‘full panoply of grounds’ under which review could be brought in relation to other public bodies should be confined in the case of the UT (at [33]).
