Administrative Law

OUSTER CLAUSE
 Introduction
Judicial review is focused upon the concept of jurisdictional error, which asks at its heart whether
or not a public authority had the power (or jurisdiction) to do what it has done. The concept of
jurisdictional error can then be subdivided into errors of law or errors of fact.

Judicial review is generally open to the review of errors of law but the scope of the courts’ powers
to review errors of fact is less clear. Linked to the issue of jurisdictional error is the possible
applicability of ouster clauses – clauses included in legislation that purport to exclude judicial
review.

Ouster clauses are measures included in legislation designed to ‘oust’ the jurisdiction of the courts.
It is clear that such ‘ouster clauses’ or ‘exclusion clauses’ may raise some significant questions
about the ability of the courts to vindicate the rule of law. As we will see, judges have become
increasingly suspicious of such clauses.

Prior to the decision of the House of Lords in Anisminic, the general approach of the courts was
that:

I. errors ‘going to’ the jurisdiction were treated as being ‘jurisdictional errors’ and subject to
the control of the court
II. whereas errors made ‘within’ jurisdiction were considered to be matters for administrative
discretion and were not usually treated as jurisdictional errors.
 Error of Law
Errors of law are errors made by public authorities either in the interpretation of the scope of their
powers (so that a public authority is seeking to exercise power that it does not have) or it may be
an error of law in the exercise of its power that renders its decision to be unlawful.

Errors which related to the type or kind or scope of case into which a public body could inquire
were regarded as jurisdictional. Errors which related to the truth or detail of the findings that it
made were categorized as non-jurisdictional.

The courts, from the 16th to the 20th century were under the assumption that a jurisdictional error
of law was reviewable, but a non-jurisdictional error of law was not, unless the error of law was
on the face of the records.

In the 20th century such presumption has changed and the courts have rejected the jurisdiction/non-
jurisdictional divide. Now the starting assumption is that all errors of law are subject to judicial
review and that the reviewing court will substitute judgment for that of the primary decision-maker
on such issues. Anisminic Ltd v Foreign Compensation Commission [1969] is a mile-stone case
when it comes to understanding how this jurisdiction/non-jurisdictional divide was finally
dissolved by the courts. The facts of the case are as follows: As a result of the Suez Crisis some
mining properties of the appellant Anisminic (renamed from Sinai Mining Co.) located in the Sinai
peninsula were seized by the Egyptian government before November 1956. The appellants then
sold the mining properties to The Economic Development Organisation (TEDO), an Egyptian
government owned organisation, in 1957.In 1959, a piece of subordinate legislation was passed
under the Foreign Compensation Act 1950 to distribute compensation paid by the Egyptian
government to the UK government with respect to British properties it had nationalised. The
appellants claimed that they were eligible for compensation under this piece of subordinate
legislation, which was determined by a tribunal (the respondents in this case) set up under the
Foreign Compensation Act 1950.

The tribunal, however, decided that the appellants were not eligible for compensation, because
their "successors in title" (TEDO) did not have the British nationality as required under one of the
provisions of the subordinate legislation. There were two important issues on the appeal to the
Court of Appeal and later, the House of Lords. The first was straightforward: whether the tribunal
had made an error of law in construing the term "successor of title" under the subordinate
legislation. The second issue was more complex and had important implications for the law on
judicial review. Even if the tribunal had made an error of law, the House of Lords had to decide
whether or not an appellate court had the jurisdiction to intervene in the tribunal's decision. Section
4(4) of the Foreign Compensation Act 1950 stated: “The determination by the commission of any
application made to them under this Act shall not be called into question in any court of law”, this
was a so-called "ouster clause" i.e. a shall not be questioned clause.

In this case a majority of the House of Lords held that a clause purporting to oust the jurisdiction
of the courts to review any “determination” of the Commission was ineffective in respect of a
decision tainted by legal error. A “determination” which transgressed the principles of
administrative law was a nullity; as it was beyond the jurisdiction of the Commission, it was no
determination at all in the eyes of s. 4(4) of the Foreign Compensation Act 1950.

The decision in Anisminic, which held that total ouster clauses do not safeguard decisions affected
by errors of law from judicial review, poses a challenge to the judgment in Smith, but the latter
was affirmed by the Court of Appeal of England and Wales in R. v. Secretary of State for the
Environment, ex p Ostler (1976).

The Court held that a distinction could be drawn between a total ouster clause and a partial ouster
such as the one in question, which gave the applicants six weeks to challenge the decision. Lord
Denning, the Master of the Rolls, explained that the rationale for upholding time limit clauses is
that it is in the public interest to promote certainty of the executive's actions. If the courts were to
allow plaintiffs to come to them for remedies long after the time limit for doing so has expired, the
acts or decisions of authorities would be held up or delayed.

It was over a decade before the HL considered the issue again in the case of Re Racal
Communication Ltd. [1981]. In this case Lord Diplock, with whom Lord Keith concurred, drew
a tripartite distinction as the scope of review.

First, administrative tribunals or authorities were subject to the full rigors of the Anisminic
judgment. Secondly, inferior courts were subject to a different test: whether the Parliament
intended question of law to be left to an inferior court. The third category was that the High Court
will not be subject to judicial review.

However, it must be mentioned that a case decided in the same year as Re Racal, did not see eye
to eye with the decision reached in Anisminic. In South East Asia Fire [1981] persisted with the
traditional collateral fact doctrine, rejecting arguments that the distinction between jurisdictional
and non-jurisdictional error had been discharged.

Nevertheless, in the case of R v Hull University Visitor, Ex p. Page [1993] the courts sided with
Anisminic. In 1966 the applicant was appointed as a lecturer to the university by a letter stating,
inter alia, that his appointment might be terminated by either party giving three months' notice in
writing. The appointment was subject to the university statutes, which, inter alia, required the
applicant to retire from office at the age of 67. By section 34(1) of the statutes members of the
staff who held their appointment until retirement might be removed "for good cause," and by
section 34(3) subject to the terms of his appointment no member of the teaching staff could be
removed save for good cause. In 1988 the university purportedly terminated the applicant's
contract of employment not for good cause but on the ground of redundancy, giving him three
months' written notice. He petitioned the visitor of the university for a declaration that such
purported dismissal was contrary to section 34 so as to be ultra vires the university's powers and
accordingly invalid.

Three important points were made in this case. First, Anisminic combined with Lord Diplock’s
dictum in O’Reilly, had rendered obsolete the distinction between errors of law on the face of the
records and other errors of law, and had done so by exceeding the ultra-virus doctrine. Secondly,
the constitutional foundation for the court’s power was the ultra vires doctrine. Thirdly, only
“relevant” errors of law would lead to the decision being quashed. The error had to be one which
affected the actual making of the decision and the decision itself.

Judicial review of tribunals under the Tribunals, Courts and Enforcement Act 2007 is more
limited than the general test established by Page. Cart [2012] is the leading authority on that
regards. S 13 of the 2007 Act states that: “For the purposes of subsection (2), the reference to a
right of appeal is to a right to appeal to the relevant appellate court on any point of law arising
from a decision made by the Upper Tribunal other than an excluded decision”. C and R failed in
appeals to the social security and child support, and the immigration and asylum to the social and
child support, and the immigration and asylum, chambers of the First –tier Tribunal respectively.
They were refused permission to appeal to the Upper Tribunal by both the First-tier Tribunal and
Upper Tribunal. They could not appeal this refusal to the Court of Appeal, because the refusal of
permission to appeal by the Upper Tribunal was that it was not amenable to further onward appeal.

When the case reaches the Supreme Court, it held moreover that the TCE Act 2007 did not contain
the clear words necessary to oust or exclude judicial review of Supreme Court, as artifact of the
common law, the object being to ensure that insofar as possible decisions were taken in accordance
with the law, and in particular the governing statute in the particular area.

The recent cases regarding this arena of law surrounds the provision of Investigatory Powers
Tribunal (hereinafter referred to as “IPT”) IPT is a specialist statutory tribunal of limited
jurisdiction created to hear and determine complaints relating to the use of investigatory powers
by (amongst others) the intelligence services.

In A v B [2009] an MI5 member wanted to write a book of his experiences however he was not
allowed to do so. The Supreme held that IPT was the appropriate venue for a challenge brought by
a former member of MI5 of the services natural to consent to the publication of a book about his
work for it. The issue was whether A was entitled to have the decision judicially reviewed, or
whether it was a matter exclusively for the Investigatory Powers Tribunal.
It was held that, For the purposes of section 7 of the HRA, Parliament did not intend for a claimant
to choose for him or herself whether to bring a claim in a court, by way of judicial review, or
before the IPT. On a proper construction of s 65(2)(a) of RIPA the correct forum was the IPT, the
jurisdiction of other courts or tribunals was excluded. Unlike ordinary courts the IPT has available
to it an elaborate set of rules to govern proceedings against an intelligence service under s.7 of the
HRA, none of which are available to ordinary courts. The construction is consistent with s.7(2) of
the HRA which requires that a court or tribunal is designated as the appropriate forum, not that
both are designated.

This decision is likely to mean that future decisions regarding the publication of matters regarding
the security services will be heard by the IPT, whose unusual procedures involve sitting in secret;
no rights for claimants to be present, represented or even aware that hearings are taking place, or
to know the other side’s case; no reasons needing to be given for adverse decisions and no rights
of appeal. However, as Lord Brown said at [31], “if the IPT’s Rules and procedures are in any way
incompatible with article 6, the remedy for that lies rather in their modification than in some
artificially limited construction of the IPT’s jurisdiction.”

However, in the recent case of R (on the application of Privacy International) v Investigatory
Powers Tribunal and others [2019], the Supreme Court handed down its judgment, deciding by
a slim majority of 4:3 that an “ouster clause” in the Regulation of Investigatory Powers Act 2000
, s 67(8)that purports to exclude from challenge or appeal any decision of the Investigatory Powers
Tribunal (“IPT”), does not prevent a judicial review challenge based on an error of law.

Further, the majority commented (albeit obiter) that there was a “strong case” for finding that the
rule of law requires that the courts should decide the extent to which to uphold a clause laid down
by Parliament that purports to exclude the availability of judicial review by the High Court.

This case is likely to be a seminal one in the development of constitutional law and has already
created much debate amongst academics and practitioners alike due to it (arguably) watering down
the concept of Parliamentary sovereignty, while strengthening the constitutional separation of
powers between legislature, executive and judiciary. From a more practical perspective is it likely
to open up opportunities to claimants to challenge other “ouster” clauses in legislation, despite the
authoritative dissenting judgments of Lord Sumption (with whom Lord Reed agreed) and Lord
Wilson.

While the general presumption against “ouster” clauses was already established prior to this case,
the Supreme Court has recalibrated the delicate balance of the rule of law, interpreting s 67(8) of
the 2000 Act in such a way that arguably goes against Parliament’s clear intention. Indeed, it will
be of note to see how the majority’s obiter suggestion that Parliament would never be able to
exclude the jurisdiction of the High Court to review the decision of an inferior court or tribunal is
approached in future judgments in the face of an even clearer ouster clause than that in s 67(8).
As regards the general approach captured in the quotation from Lord Carnwath set out above, on
one level this is perhaps uncontroversial. It is of course for the Court to determine the extent to
which an ouster clause restricts review or appeal in any particular situation. But what is strikingly
absent from this formulation is any reference to the intention of Parliament. Traditionally, it would
have been that intention which would have been the touchstone in determining the court’s
approach to interpreting any ouster clause, as indeed it would be with any other statutory provision.
This decision suggests that in the future, courts will be guided by other factors and that is why
commentators are saying that this may abrogate the sovereignty of Parliament, at least as regards
the question of ouster clauses.

The majority’s decision was that the rule of law risks being undermined if Parliament has the
power to alter the normal modes of judicial scrutiny of a decision of the executive so that it is
undertaken by a “judicial body” that is not the High Court. However, if in future there is an even
clearer ouster clause to which the court declines to give binding effect there may be questions as
to whether the court has overstepped its own role within the rule of law. (Parliamentary sovereignty
had hitherto been considered to be a component part of the rule of law.) Indeed, a showdown of
this kind may be more likely in light of the construction-based determination of this particular
appeal and one might now expect Parliament to amend s 67(8) to close the loophole that this
judgment identifies.

Error of Fact
The question of whether an error of fact is subject to judicial review has been a more difficult one
for the law. Until relatively recently, it was generally felt that review of errors of fact was highly
restricted. In recent years, the courts have taken a more expansive approach. We will consider this
in greater detail below. Error of fact can come into being in many ways. For example:

I. Where a simple factual finding made by the decision-maker is challenged as being

incorrect.
II. Where the primary decision-maker factually misinterpreted or misunderstood evidence
presented at the hearing
III. Where the case involves a more complex factual findings, which require a greater degree
of evaluative judgment.
IV. Where the decision-maker makes mistake of fact by failing to take into account of crucial
evidence when it made its initial decision.
V. Where the decision is made on certain factual assumptions and the applicant seeks to show,
sometimes through the admission of fresh evidence, that these factual assumptions were
mistaken.
Previously, the extent to which facts were susceptible to review or appeal was until recently
unclear, notwithstanding the importance of the issue. There were numerous cases dealing with
review and appeal for fact, but there was little principled judicial guidance as to when facts ought
to be susceptible to judicial scrutiny.

The narrow view suggested that judicial review could lie for judicial facts: these are facts that
related to the existence of the public body’s power over the relevant area. On the other hand a
broader view of review suggested that misunderstanding or ignorance of an established and
relevant fact could be a ground for review (Tameside [1977], as per Lord Scarman).

An early example was R v SSHD ex p Khawaja [1982] 1 WLR 625. The issue was whether Mr
Khawaja was an “illegal immigrant” for the purposes of the Immigration Act 1971. Lord Bridge
held that the Court was able to look at the evidence and decide whether it justifies the conclusion
the Secretary of State reached. The Court was not simply limited to seeing whether there was
"some evidence" for the Secretary of State’s conclusion.

In the case of Moyna v Secretary of State for Work and Pension [2003] The appellant had
applied for and been refused disability living allowance on the basis of being able to carry out
certain cooking tasks The Court found for the appellant.

Lord Hoffmann, in the leading speech, had considered the interpretation by the social security
commissioners of the so-called ‘cooking test’ for welfare benefits. He rejected the submission that,
because the words used were ordinary English words, it should be treated as a pure question of
fact, following Lord Reid’s well known comments on the meaning of the words ‘insulting
behaviour’ in Cozens v Brutus, which Lord Hoffmann thought had been given ‘a much wider
meaning than the author intended’ Commenting on the distinction between issues of law and fact,
he said: ‘It may seem rather odd to say that something is a question of fact when there is no dispute
whatever over the facts and the question is whether they fall within some legal category. In his
classic work on Trial by Jury (1956) Lord Devlin said, (at p 61): ‘The questions of law which
are for the judge fall into two categories: first, there are questions which cannot be correctly
answered except by someone who is skilled in the law; secondly, there are questions of fact which
lawyers have decided that judges can answer better than juries.’ Likewise it may be said that there
are two kinds of questions of fact: there are questions of fact; and there are questions of law as to
which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form
an independent judgment. But the usage is well established and causes no difficulty as long as it
is understood that the degree to which an appellate court will be willing to substitute its own
judgment for that of the tribunal will vary with the nature of the question.

The case of E v SSHD [2004], attempted to bring some order to this area. The decision of the
Court of Appeal arose out of two joined cases concerned with immigration and asylum, of which
only the case concerned with E is of relevance for the present content. E, an Egyptian national,
who lived outside Egypt all his life, came to UK in 2001 from Bangladesh and claimed asylum.
He argued that if he returned to Egypt he would be at risk of detention and torture, because he was
sympathizer with the Muslim Brotherhood and his family was involved in its activities. His
application for asylum was refused by the Home Secretary, and this was confirmed by the
adjudicator and by the IAT. The decision was based in part on the factual assumption that
membership of Muslim Brotherhood would not render him liable to persecution, more especially
since his involvement had been at a low level.

The IAT refused permission to appeal to the Court of Appeal, stating that the IAT could only
decide a case on the evidence before it at the time of hearing, and the reports relied on by E were
not before the tribunal when it made its decision.

The essence of E’s case was that IAT has erred by not admitting the relevant evidence, and that
this could be appealed even where, as under statutory regime, the right of appeal was limited to
question of law. The CA held that cases concerned with factual error could be dealt with under
separate ground of review based on fairness. The court also concluded that mistake of face giving
rise to unfairness was a separate head of challenge in an appeal on a point of law “at least in those
statutory contexts where the parties share an interest in co-operating to achieve the correct results.

Carnwarth LJ (as he then was) decided in favour of the Claimant. Further he found an error of fact
could constitute a separate ground of review. There were four requirements for such a review to
succeed:

I. The mistake must be on a existing fact (including mistake as to the availability of evidence
on a particular matter);
II. The fact must be uncontentious;
III. The claimant must not be responsible for the mistake; and
IV. The mistake must have placed a material part in the tribunal’s reasoning.

The decision in R (A) v Croydon London Borough Council [2009] indicates that in situations
where the statutory language is clear and the courts are not at a disadvantage relative to
administrative decision-makers in terms of expertise, judges will patrol jurisdictional boundaries
more vigilantly. S.20 of the Children Act 1989 imposes a duty on local authorities to provide
accommodation, in defined circumstances, to “any child in need within their area”. Lady Hale
rejected the argument that the local authority’s determination as to whether a person is a “child in
need” was non- jurisdictional, drawing a distinction between the question of “need”, which would
require “a number of different value judgments” to which “there are no clear cut right or wrong
answers”, and the question of whether a person is a “child”, where “[t]here is a right or a wrong
answer” and which is of a type of question that “regularly come[s] before the courts”. Democracy
and good administration can again be seen to be operative: once more, there is a focus on the
statutory language (which is much tighter here than in South Yorkshire Transport) and the relative
 institutional competence of courts and decision-makers (which is comparable here, such that close
judicial control is unlikely to frustrate the attainment of statutory objectives).

Red light/Green Light Theory

Red Light Theory Green Light Theory

According to the 19th-century laissez-faire theory On the other end of the spectrum, there is the green-
championed by A. V. Dicey, which Carol Harlow light approach derived from the utilitarian school of
and Richard Rawlings termed as the "red-light thought associated with legal philosophers such as
approach" in their 1984 book Law and Jeremy Bentham and John Stuart Mill. The green-
Administration, there should be a deep-rooted light approach regards state involvement as an
suspicion of governmental power and a desire to effective means to facilitate the delivery of
minimize the encroachment of the state on the communitarian goals. Hence, ouster clauses are
rights of the individuals. Therefore, the executive, regarded as useful devices to keep a conservatively
which is envisaged as capable of arbitrary inclined judiciary at bay. One such communitarian
encroachment on the rights of individual citizens, isgoal achieved by ouster clauses is that it results in
subjected to political control by Parliament and to consistency and finality in the implementation of
legal control by the courts. policy considerations by encouraging specialist
bodies to act as adjudicators in certain areas of
administration.
The red light theory considers law as superior to The Green light theory holds a positive outlook
politics while the green light theory holds that law towards the state. It believes that the government is
is not superior to politics or administration. congenial and it cannot be suspected of committing
unlawful actions. The green light theory thus
emphasizes on how it is important for the
administrative law to facilitate government action
rather than intervening in it through judicial or
political control.