LAW1081: The Individual and the State 2020-21

Lecture 14. The Prerequisites for Judicial Review

Essential reading
 Roger Masterman and Colin Murray Constitutional and Administrative Law
(Pearson, 2018), 516-539
 R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815
 Her Majesty's Inspectorate of Pollution, ex parte Greenpeace Ltd [1994] 1
WLR 570
 Secretary of State for Foreign and Commonwealth Affairs, ex parte World
Development Movement [1995] 1 WLR 386
 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 [read Lord
Reid’s judgment only: pp167-175]
 R (on the application of Privacy International) v Investigatory Powers Tribunal
[2019] UKSC 22 (focus on the judgments of Lord Carnwath [1]-[29], [104]-
[145]; and Lord Wilson, [213]-[254])

Further reading
 Carol Harlow and Rick Rawlings Law and Administration (3rd ed, London,
CUP, 2009), chapter 15.
 Mark Elliott and Jason Varuhas Administrative law: text and materials (5th
edn, OUP, 2017), Ch. 13.
 Jane M Rooney, ‘Standing and the Northern Ireland Human Rights
Commission’ (2019) 82(3) Modern Law Review 525.
 David Pannick ‘Who is subject to Judicial Review and in Respect of What?’
[1992] Public Law 1
 Paul Daly ‘Of Clarity and Context: R (Privacy International) v Investigatory
Powers Tribunal [2019] UKSC 22’:
https://www.administrativelawmatters.com/blog/2019/05/15/of-clarity-and-
context-r-privacy-international-v-investigatory-powers-tribunal-2019-uksc-
22/
 Mark Elliott also discusses the CA decision here:
https://publiclawforeveryone.com/2017/11/26/privacy-international-in-the-
court-of-appeal-anisminic-distinguished-again/

Learning outcomes
By the end of this lecture, you should be able to:

 Explain the importance of procedure

 Describe the key prerequisites and procedure for JR
 Describe and evaluate the courts’ response to ouster clauses

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I. Introduction
 This area of the law may seem excessively technical, but claimants for judicial
review must pass through these prerequisites in order to have their cases
heard. It is therefore vitally important that you know something about the law
on procedure.
 Harlow and Rawlings: why procedure matters:
o A means for the judges to manage case load
o A means to limit access to the court for those who are considered to have
‘improper’ motives
o A balance between protection of the individual and the efficacy of public
administration
C Harlow and R Rawlings Law and Administration (3rd ed, London, CUP,
2009), chapter 15.

A brief history
 British public law as a law of remedies, not rights: In the past, much public law
was determined by remedies (prerogative and common law), where each
remedy fit a circumstance. The law and procedure on judicial review was
incredibly complex, but also very rigid. All this has a legacy which can be seen in
administrative law.
 Reform over the late 20th century: eg., Senior Courts Act 1981 (which
introduced a specific ‘public law’ procedure, and created a much more flexible
position on standing—s31(3)), the Civil Procedure Rules 2000 (which aimed to
streamline the process and add flexibility) and the Administrative Court,
established in 2000 to deal specifically with judicial review cases.
 These reforms were perhaps too successful. In 2000, there were 4000 judicial
review claims; by 2013 there were 16,000. As a result, successive governments
have attempted to reduce recourse by claimants to judicial review. In 2015 the
Criminal Justice and Courts Act was enacted, which reduced the number of
cases, although in practice many of the claims shifted to other tribunals.
 The current government has also launched an independent review of
administrative law. The terms of reference include potential amendments on
the law of standing, time limits on claims and the principles on which relief is
granted in claims for judicial review. This is something to keep an eye out for:
there may be big changes on the horizon.
https://www.gov.uk/government/news/government-launches-independent-
panel-to-look-at-judicial-review

The Civil Procedure Rules 2000

Rule 1 of the CPR

The overriding objective
(1) These Rules are a new procedural code with the overriding objective of
enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is
practicable –
(a) ensuring that the parties are on an equal footing;

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 (b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and …
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while
taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.

 Part 54 is the Part of the rules dealing with Judicial Review.

 Rules 54.2 and 54.3 have the effect of keeping all public law matters in the
procedure set out under Part 54.
 Rule 54.3 also sets out rules on damages.
 Rule 54.4 sets out the requirement for permission to proceed.
 Rule 54.5 sets out the rule on time limits.

The process for an application in JR

o Exhaust Complaints Process
o Pre-Action Letter/Protocol
o Permission Stage
o Substantive Hearing
 There are a number of steps in the procedure or prerequisites for JR. We will
focus on only a small range of those steps in the permission and substantive
hearing stages—in particular, amenability, standing and time limits.

II. Permission stage

 For this module we will focus primarily on this stage and the substantive
hearing.
 Rationale: the permission stage serves a number of purposes:
 Encourages settlement;
 Saves court time
 Protects administration; and
 Protects the public interest

Civil Procedure Rules 54.4. Permission required

The court’s permission to proceed is required in a claim for judicial review
whether started under this Section or transferred to the Administrative Court.

The core prerequisites at permission stage

1. Procedural exclusivity: when must the application for judicial review be used?
2. Amenability: Is the body which had made the decision a public body or
exercising a public function so as to be susceptible to judicial review?
3. Standing: Does the person who seeks to challenge the decision have standing
(locus standi) to do so?
4. Is the application made in time and has permission been given?

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In this module, we will only be focusing on prerequisites 2-4 of the permission
stage (as well as the substantive hearing stage, in which the grounds of JR are
covered). But we should briefly discuss procedural exclusivity.

Procedural exclusivity: when must JR be used?

 For our purposes, the key point is that public law challenges must be
conducted by way of judicial review. The key case is O'Reilly v Mackman
[1983] 2 AC 237

CPR 54.2 When this Part must be used:

The judicial review procedure must be used in a claim for judicial review where the
claimant is seeking –
(a) a mandatory order;
(b) a prohibiting order;
(c) a quashing order; or
(d) an injunction under section 30 of the Supreme Court Act 1981
(restraining a person from acting in any office in which he is not entitled to
act).

54.3 – When this Part may be used

(1) The judicial review procedure may be used in a claim for judicial review where
the claimant is seeking –
(a) a declaration; or
(b) an injunction.
…(Where the claimant is seeking a declaration or injunction in addition to one
of the remedies listed in rule 54.2, the judicial review procedure must be
used)

IV. Amenability
Civil Procedure Rules, Part 54.1(2):
In this part –
(a) a ‘claim for judicial review’ means a claim to review the lawfulness of
(i) an enactment; or
(ii) a decision, action or failure to act in relation to the exercise of a
public function. (emphasis added)

 NB: the test used here for public function is similar to but separate from that
used under s 6 HRA.
 Why do bodies exercising public functions have special standards imposed on
them?

First, because the institutions of governance have the job of running

the country, they must have some functions, powers, and duties
which private citizens do not have; obvious examples are the waging
of war and issuing of passports. Secondly, because of the very great
power government institutions can wield over its citizens (most
particularly because government enjoys a monopoly of legitimate

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 force) we may want to impose on them special duties of procedural
fairness that do not normally apply to private citizens and special
rules about what organs of governance may do and decide. Thirdly,
because certain institutions of governance have a monopoly over
certain activities and the provision of certain goods and service, it
might be thought that the exercise of such powers ought to be subject
to forms of ‘public accountability’ to which the activities of private
individuals are usually not subject’.
P. Cane, An Introduction to Administrative Law (OUP, 2004) 13-14.

Sources of public functions

Statute
 The fact that a body derives its authority from statute will generally be
conclusive that it is exercising a public function. eg., Anisminic, GCHQ (see
below)
 The vast majority of powers exercised by public authorities are statutory
powers, i.e. stemming from legislation.
 Much of judicial review is focused on applying principles of administrative law
to the exercise of discretionary statutory powers by public authorities

The prerogative
 Prerogative powers = powers of the executive, the residual power of the
Crown which derive from common law and not statute, eg., deployment of
armed forces, granting of mercy
 Before the landmark case of GCHQ, it was widely assumed that the courts
could determine (a) the existence and (b) limits of a prerogative power but
could not interfere with how it was exercised. Eg., Case of Proclamations
(1611) 2 Co Rep 74 at 76: ‘The King hath no prerogative but that which the
law of the land allows him.’
 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
(often known as the GCHQ case). PM Thatcher decided to ban civil servants
working at the Government Communications Headquarters from joining a
trade union under the prerogative (at that time the civil service was governed
under the prerogative). The CCSU brought a claim in JR, arguing amongst
other matters that they had no been consulted. The lower courts held that
the courts could not review exercises of the prerogative, but the HOL
disagreed. Lord Diplock stated:

‘the right of the executive to do a lawful act affecting the rights of the
citizen, whether adversely or beneficially, is founded upon the giving
to the executive of a power enabling it to do that act. The giving of
such a power usually carries with it legal sanctions to enable that
power if necessary to be enforced by the courts. In most cases that
power is derived from statute though in some cases, as indeed in the
present case, it may still be derived from the prerogative. In yet other
cases, as the decisions show, the two powers may coexist or the
statutory power may by necessary implication have replaced the

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 former prerogative power. If the executive in pursuance of the
statutory power does an act affecting the rights of the citizen, it is
beyond question that in principle the manner of the exercise of that
power may today be challenged on one or more of the three grounds
which I have mentioned earlier in this speech. If the executive instead
of acting under a statutory power acts under a prerogative power and
in particular a prerogative power delegated to the respondent under
article 4 of the Order in Council of 1982, so as to affect the rights of
the citizen, I am unable to see, subject to what I shall say later, that
there is any logical reason why the fact that the source of the power is
the prerogative and not statute should today deprive the citizen of
that right of challenge to the manner of its exercise which he would
possess were the source of the power statutory. In either case the act
in question is the act of the executive. To talk of that act as the act of
the sovereign savours of the archaism of past centuries. [Note he
went on to say: ‘But I do not think that that right of challenge can be
unqualified. It must, I think, depend upon the subject matter of the
prerogative power which is exercised.’ And in fact the HOL went on to
hold that the ban was legitimate because of national security]
 In short, the question of ‘justiciability’ is not determined by looking at the
source of the power, but rather by looking at its nature and subject matter, in
light of institutional competence and the appropriate role for the court. See
also: R v. Secretary of State for the Home Department, ex parte Fire Brigades
Union [1995] 2 AC 513
 More recently, see R (Miller) v The Prime Minister (‘Miller 2’) [2019] UKSC 41:
in this case the UKSC was asked to review an exercise of prerogative power in
the form of prorogation—the suspension of Parliament. The court
unanimously confirmed it could review an exercise of prerogative power and
avoided any issues of justiciability by arguing it was the courts’ role to
determine if such a power existed; and what were the legal limits of the
power.

De facto powers
 Courts have shown themselves willing to protect individuals from abuses of
power even when the source of the power derives neither from legislation
nor the prerogative.
 R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815.
 The Panel on Takeovers and Mergers was a self-regulating body set up by the
City of London to deal with takeovers and mergers. It was not a statutory
body. The applicants sought review of a decision by the Panel that
competitors of the applicants had no breached the City Code on Takeovers.
The High Court refused on the basis that the Panel was not susceptible to JR.
The Court of Appeal said that the decisions of the Panel were reviewable:

‘[The Panel] is without doubt performing a public duty and an

important one. This is clear from the expressed willingness of the
Secretary of State for Trade and Industry to limit legislation in the

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 field of take-overs and mergers and to use the panel as the
centrepiece of his regulation of that market. The rights of citizens are
indirectly affected by its decisions, some, but by no means all of
whom, may in a technical sense be said to have assented to this
situation, e.g. the members of the Stock Exchange. At least in its
determination of whether there has been a breach of the code, it has
a duty to act judicially and it asserts that its raisin [sic] d'etre is to do
equity between one shareholder and another. Its source of power is
only partly based upon moral persuasion and the assent of
institutions and their members, the bottom line being the statutory
powers exercised by the Department of Trade and Industry and the
Bank of England. In this context I should be very disappointed if the
courts could not recognise the realities of executive power and
allowed their vision to be clouded by the subtlety and sometimes
complexity of the way in which it can be exerted.’ 838-839, per Lord
Donaldson.

 R v Jockey Club ex parte Aga Khan [1993] 2 All ER 853. In this case, a
disgruntled horse owner sought judicial review of the Jockey Club’s decision
to disqualify his horse because it had failed a drug test. The Jockey Club was
incorporated by Royal Charter (ie., non-statutory). The Court of Appeal found
that it could not review the decisions of the Disciplinary Committee of the
Jockey Club, because the powers and duties of the Club were not
governmental, and there were adequate remedies in contract.
 Many commentators have invoked monopoly of power as a legitimate basis
for allowing judicial review. Aim in administrative law, of averting or
redressing abuse of power. But it appears to be rejected in Aga Khan.

Contracted out powers?

 private bodies managing what would otherwise be government services have
been the subject of great controversy: are they, or are they not exercising
public functions? e.g. care homes (R v Servite Houses and Wandsworth LBC
ex parte Goldsmith and Chatting (2001) 33 HLR 35: held not to be exercising a
public function), housing associations (R (On the Application of Weaver) v
London & Quadrant Housing Trust [2004] 1 WLR 233: held not to be
exercising a public function); and YL v Birmingham City Council [2007] UKJL
27.
 R (Beer) v Hampshire Farmers' Markets Ltd [2003] EWCA Civ 1056 [2004] 1
WLR 233—per Dyson LJ:

It seems to me that the law has now been developed to the point
where, unless the source of power clearly provides the answer, the
question whether the decision of a body is amenable to judicial
review requires a careful consideration of the nature of the power
and function that has been exercised to see whether the decision has
a sufficient public element, flavour or character to bring it within the
purview of public law. It may be said with some justification that this

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 criterion for amenability is very broad, not to say question-begging.
But it provides the framework for the investigation that has to be
conducted.

 the source and nature of the power, the degree of involvement of pure public
bodies (such as govt depts) and the degree to which the power is publicly
funded (see M&M, 525).

V. Standing
Senior Courts Act 1981, s 31 (3):

‘No application for judicial review shall be made unless the leave of the High
Court has been obtained in accordance with rules of court; and the court
shall not grant leave to make such an application unless it considers that the
applicant has sufficient interest in the matter to which the application
relates.’ (emphasis added)

 The initial aim of the standing requirement was to weed out meddlesome
claimants; but in practice the courts have adopted a liberal approach to
standing.

What is the definition of ‘sufficient interest’?

Individuals
 Direct personal interest: If directly and personally affected by decision, the
applicant plainly has ‘sufficient interest’ e.g. R v Board of visitors of Hull
Prison, ex parte St. Germain (No. 2) [1979] 3 All ER 545. A prisoner wished to
challenge a decision that found him guilty of disciplinary offences and
punished him for it. He had standing.
 The same rule applies to artificial legal persons, such as companies (R v Panel
on Takeovers and Mergers, ex parte Datafin [1987] 1 All ER 375) and local
authorities Secretary of State for Education and Science, ex parte Tameside
MBC [1977] AC 1014.
 Public interest: However, the courts appear willing to extend ‘sufficient
interest’ to include claimants who seek judicial review on matters where the
public interest is high: R (Evans) v Secretary of State for Defence [2010] EWHC
(Admin) 1445. In this case the claimant sought judicial review of the UK’s
policy of transferring individuals to the Afghan authorities, even where the
individuals could be at a real risk of torture or serious mistreatment. But note
in the case that one reason the court accepted Evans had standing was
because the government did not contest this.

Groups
 Difficulty arises over bodies representing the interests of others, e.g. pressure
groups
 Trade Unions have standing – acting as proxy for members

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 Body has standing if it is a statutory one which has a statutory duty to further
certain aims: R v Secretary of State for Employment, ex parte Equal
Opportunities Commission [1995] 1 AC 1.
 The question of standing is often linked with merits: IRC ex p National
Federation of Self Employed [1982] AC 617. The appellants were a body of
taxpayers who wished to challenge arrangements made by the Inland
Revenue for the taxation of casual employees of certain Fleet Street
newspapers, which amongst other matters involved a partial amnesty on
previous tax evasion. The appellants (businessmen) argued that the
arrangements treated the employees in question in an overly generous
manner, and that they had never been given such concessions. The court
held the appellants had no standing. But:

‘Had [the Federation] shown reasonable grounds for believing that

the failure to collect tax from the Fleet Street casuals was an abuse of
the revenue’s managerial discretion or that there was a case to that
effect which merited investigation and examination by the court, I
would have agreed with the Court of Appeal that they had shown a
sufficient interest for the grant of leave to proceed further with their
application’ (Lord Scarman).

‘It would, in my view, be a grave lacuna in our system of public law if a

pressure group, like the federation, or even a single public spirited
taxpayer, were prevented by outdated technical rules of locus standi
from bringing the matter to the attention of the court to vindicate the
Rule of Law and get the unlawful conduct stopped’ (Lord Diplock).

 In earlier cases, the courts tended to be more conservative about standing

for pressure groups. See eg., Secretary of State for the Environment ex p.
Rose Theatre Trust [1990] 1 QB 504. Remains of an archeologically significant
theatre were unearthed. A pressure group—the Trust—was formed to
campaign for the site to be protected. It applied for JR to quash the Secretary
of State’s decision not to protect the site from commercial development.
Schiemann J held that since none of the individual members of the Trust had
no standing, nor could the Trust.
 But as Masterman and Murray note, nowadays groups can often claim
standing either on the basis of representative standing; or on the basis of
expertise.
 Representation: Her Majesty's Inspectorate of Pollution, ex parte Greenpeace
Ltd [1994] 1 WLR 570. Greenpeace were seeking review of the decision of Her
Majesty’s Inspectorate of Pollution (HMIP) to allow testing at the THORP
nuclear reprocessing plant at Sellafield without further consultation.
Greenpeace was granted standing on the basis that not only was it a
responsible and respected body, it also had 2500 supporters in the area
where the plant was located, and who might not otherwise have a means by
which to bring a case.

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  Expertise: Secretary of State for Foreign and Commonwealth Affairs, ex parte
World Development Movement [1995] 1 WLR 386. WDM sought to challenge
an apparently unlawful decision of the Govt to give financial aid to the Pergau
Dam project in Malaysia. The money used was supposed to go to overseas
aid by statute. However, it appeared clear that the real motive was to use the
money to sweeten a trade deal with Malaysia. WDM was granted standing on
the basis that (amongst other matters)

‘there seem to me to be a number of factors of significance in the

present case: the importance of vindicating the rule of law, as Lord
Diplock emphasised [1982] A.C. 617; the importance of the issue
raised, as in Ex parte Child Poverty Action Group [1990] 2 Q.B. 540;
the likely absence of any other responsible challenger, as in Ex parte
Child Poverty Action Group and Ex parte Greenpeace Ltd. (No. 2)
[1994] 4 All E.R. 329; the nature of the breach of duty against which
relief is sought (see per Lord Wilberforce, at p. 630D, in Ex parte
National Federation of Self-Employed and Small Businesses Ltd.); and
the prominent role of these applicants in giving advice, guidance and
assistance with regard to aid [italics added]: see Ex parte Child
Poverty Action Group [1990] 2 Q.B.540, 546H. All, in my judgment,
point, in the present case, to the conclusion that the applicants here
do have a sufficient interest in the matter….’ 395-6, per Rose LJ

VI. Time limits

54.5 Time limit for filing claim form
(1) The claim form must be filed –
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the
claim first arose.
(2) The time limits in this rule may not be extended by agreement between the
parties.
(3) This rule does not apply when any other enactment specifies a shorter time
limit for making the claim for judicial review.

 Rationale: Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237:

‘The public interest in good administration requires that public

authorities and third parties should not be kept in suspense as to the
legal validity of a decision...for any longer than is absolutely necessary
in fairness to the person affected...’

 Even action within 3 months may not be sufficiently 'prompt' and be deemed
unduly delayed: R v Swale Borough Council, ex parte the Royal Society for the
Protection of Birds [1991] JPL 39
 Doubts have been raised about the compatibility of these tests with the ECHR
for reasons of uncertainty. Note, however, that in Lam v UK Application
41671/98 the ECtHR rejected the argument that promptness in the context of

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 a planning judicial review was a breach of Article 6 and found that it was a
proportionate limitation.

VII. Remedies
 The key point is that remedies in judicial review are generally discretionary:
successful claimants are not entitled to a remedy as of right.
 Remember: JR does not substitute a court decision for that of the public body
being reviewed, but (generally) simply finds if it was correctly taken or not.
 Quashing Order: formerly Certiorari. Quashes an unlawful decision of a
public authority. As such, the decision is void.
 Mandatory Order: formerly Mandamus. Requires a body to perform a
specific public duty.
 Prohibiting Order: formerly Prohibition. Orders a body to not carry out an
ultra vires act.
 Injunction: Ordinarily granted on an interim basis, subject to a final decision
on an issue, although they can be used as a final remedy in some limited
cases. An injunction might be prohibitory or mandatory – a prohibitory
injunction prevents a public authority from doing something that it was
otherwise proposing to do, whereas a mandatory injunction obliges a public
authority to take action where it was proposing not to.
 Declaration: does not quash a decision but amounts to a definitive statement
of the legal position of the parties.
 Damages: but only if can also establish a tort or breach of contract (now
including breach of ECHR rights under the Human Rights Act ss 6,7 & 8)
 NB: CPR 54.3(2).”A claim for judicial review may include a claim for damages
but may not seek damages alone.”
 Substitutionary remedy: See CPR 54 19(3): “Where the court considers that
there is no purpose to be served in remitting the matter to the decision-
maker it may, subject to any statutory provision, take the decision itself” –
rarely used.

Factors Militating Against the Grant of Relief

 Failure to pursue adequate alternative remedies such as statutory right of
appeal: eg R (Sivasubramaniam) v Wandsworth CC [2003]1 WLR 475.
 Undue delay in seeking relief
 Unmeritorious conduct on the part of the claimant
 Triviality: the general principle de minimis non curat lex (the law does not
concern itself with trifles) applies.

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VIII. Attempts to exclude judicial review
 Basic principle: courts do not read ouster/ exclusion clauses as ousting
judicial review.
 Ouster (or exclusion) clauses aim to oust JR or exclude courts from
scrutinizing the decisions of specified public bodies. But in doing so they
expose a tension between 3 core constitutional principles: PS, the ROL and
the SOP. This is because ouster clauses are ostensibly the will of Parliament
(PS), yet they purport to prevent the courts from ensuring a body does not
act outside its powers (ROL, SOP). Asserting that courts can engage in JR in
spite of an ouster clause seems to violate PS and the traditionally subordinate
status of the courts.
 In practice, the courts have ‘read down’ ouster clauses so that they do not
exclude the courts engaging in judicial review. The classic case is Anisminic.

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

 The Foreign Compensation Commission (‘FCC’) was set up by the Foreign
Compensation Act 1950 to determine and provide compensation to be paid
to British nationals who had had property confiscated by foreign
governments.
 The Act also provided that ‘The determination by the Commission of any
application made to them under this Act shall not be called in question in any
court of law’. The FCC rejected Anisminic’s application for compensation, and
the company sought a declaration that the decision was unlawful. Their
argument was simply that the Commission misinterpreted the criteria for
compensation. Did s.4(4) preclude judicial review?
 The majority (3-2) of the Law Lords held that the Commission had
misinterpreted the criteria, and that their error of law was of such a kind that
there was no ‘determination’ at all. According to Lord Reid, the Commission
had decided the claim ‘on a ground which they had no right to take into
account’ and as a result their decision was not a determination, but a nullity.

Lord Reid: ‘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. Undoubtedly such a provision
protects every determination which is not a nullity. But I do not think
that it is necessary or even reasonable to construe the word
"determination" as including everything which purports to be a
determination but which is in fact no determination at all’ (170)

 We will return to a deeper discussion of Anisminic in the next lecture, under

illegality. Since Anisminic, successive Parliaments have tried to restrict judicial
review by various means. A particularly egregious example was the Asylum
and Immigration Bill 2003, which the Blair government later withdrew.

 However, a number of statutes concerning national security have exclusion

clauses. Some of these have become the subject of litigation.

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R (on the application of Privacy International) v Investigatory Powers Tribunal
[2019] UKSC 22
 Privacy International complained that Government Communications
Headquarters (‘GCHQ’), one of the intelligence services, had carried out
unlawful computer hacking. Computer hacking by the intelligence services
requires the authority of a warrant of the Secretary of State under section 5
of the Intelligence Services Act 1994.
 The Investigatory Powers Tribunal (‘IPT’) was a special tribunal established
under the Regulation of Investigatory Powers Act 2000 (RIPA), which dealt
with oversight over the intelligence services. RIPA required that IPT members
either be of high judicial office and/or meet specified legal qualifications.
 Privacy International sought judicial review of a decision taken by the IPT. It
argued that the IPT had misconstrued s5(2) of the Intelligence Services Act
1994, and in so doing had wrongly concluded that the Secretary of State was
authorized to issue ‘thematic’ (ie., very general) warrants.
 However, s 67(8) of RIPA provided:

‘determinations, awards and other decisions of the Tribunal (including

decisions as to whether they have jurisdiction) shall not be subject to
appeal or be liable to be questioned in any court.’ (italics added)

 Issues:
1. Did s67(8) oust the supervisory jurisdiction of the High Court?
2. Could Parliament ever oust the supervisory jurisdiction of the High Court?

 The High Court and Court of Appeal said that s67(8) had ousted the
jurisdiction of the courts. In the Court of Appeal Sales LJ (now Sales JSC)
noted:

‘In Anisminic, the word "determination" was taken to exclude

purported determinations made in excess of jurisdiction, where the
excess of jurisdiction arose because of (among other things) an error
of law made by the Foreign Compensation Commission in arriving at
its determination. But the drafter of section 67(8) has expressly
adverted to the possibility of the IPT making an error of law going to
its jurisdiction or power to act, by the words in parenthesis in that
provision: "including decisions as to whether they have jurisdiction".
Therefore, at least so far as the word "decision" is concerned, it is not
tenable to apply the simple distinction relied upon in Anisminic in the
context of section 4(4) of the 1950 Act between a "determination"
and a purported determination, in the sense of a determination made
without jurisdiction. [34]…

It is clear that Parliament's intention in establishing the IPT and in

laying down a framework for the special procedural rules which it
should follow, including the Rules, was to set up a tribunal capable of
considering claims and complaints against the intelligence services

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 under closed conditions which provided complete assurance that
there would not be disclosure of sensitive confidential information
about their activities. [42] …

Interpretation of section 67(8) as set out above gives it a meaning

which promotes this purpose. To construe section 67(8) as allowing
judicial review of determinations and decisions of the IPT would
subvert it. It would mean that despite the elaborate regime put in
place to allow the IPT to determine claims against the intelligence
services in a closed procedure while guaranteeing that sensitive
information about their activities is not disclosed, judicial review
proceedings could be brought in which no such guarantee applied.’
[43]

 The UKSC split, with a majority (4:3) arguing that s67(8) did not exclude the
supervisory jurisdiction of the courts.

 Lord Carnwath (for the majority): Repeating Anisminic, Lord Carnwath stated:

‘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]

The main flaw in [the government’s] argument … is that it treats the

exercise as one of ordinary statutory interpretation, designed simply
to discern “the policy intention” of Parliament, so downgrading the
critical importance of the common law presumption against ouster...
[107]

The exclusion applies only to a legally valid decision relating to

jurisdiction. In the parenthesis, as in the remainder of the subsection,
a decision which is vitiated by error of law, whether “as to
jurisdiction” or otherwise, is no decision at all… [109]

Judicial review can only be excluded by “the most clear and explicit
words” (Cart, para 31). If Parliament has failed to make its intention
sufficiently clear, it is not for us to stretch the words used beyond
their natural meaning.’ [111]

 ‘consistently with the rule of law, binding effect cannot be

given to a clause which purports wholly to exclude the
supervisory jurisdiction of the High Court to review a decision
of an inferior court or tribunal, whether for excess or abuse of

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 jurisdiction, or error of law. In all cases, regardless of the
words used, it should remain ultimately a matter for the court
to determine the extent to which such a clause should be
upheld, having regard to its purpose and statutory context,
and the nature and importance of the legal issue in question;
and to determine the level of scrutiny required by the rule of
law’ [144].

 In short, it seems rare if not impossible to have a valid and effective ouster
clause.
 Lord Wilson (dissenting): Lord Wilson took the opposite view to Lord
Carnwath.

‘Necessarily considered in their context, the meaning of the words in

parenthesis in section 7(8) of the 1985 Act, now replicated in section
67(8) of the 2000 Act, is surely to encompass within the exclusion of
judicial supervision all the decisions of the IPT in relation to its
“jurisdiction”; and to ascribe to that word the strained extension of its
effect adopted in the Anisminic case so as to cover ordinary errors of
law as well, of course, as errors in the proper sense of it. The initial
presumption that Parliament did not intend such an exclusion and the
need in consequence for a strict construction of the subsection have
to yield to what I consider to be the only reasonable meaning of its
words, which is to the contrary.’ [224]

‘With respect, I consider the words of the subsection to be totally

clear in excluding judicial review of all the IPT’s decisions; and an
exclusion of judicial review in relation only to legally valid
determinations seems to me to make no sense.’ [229]

In relation to the second issue, Lord Wilson answered ‘yes’, and

noted:
‘Every legal system has to identify some end-point beyond which
there can be no challenge or further challenge to a judicial decision;
and it may well identify different end-points for decisions in different
areas of the law and, within any one area of it, perhaps different end-
points for challenges to decisions of fact, to decisions allegedly
vitiated by an ordinary error of law and to decisions allegedly made in
excess of jurisdiction in the proper sense. [238]

Conclusion
 Procedure: tension between access to justice and administrative efficiency
 Ouster clauses: obvious tension between the 3 core principles of UK public
law

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