Judicial review reform II: Ouster clauses and the rule of law

In my first post on the Report of the Independent Review of Administrative Law (IRAL) and the Government’s Response to it, I considered proposals concerning the status of unlawful administrative action and the limitation of the effect of remedies. I turn, in this second post in the series, to the matter of ouster clauses (on which I have written at greater length in a chapter that I contributed to Chris Hunt, Lorne Neudorf and Micah Rankin (eds), Legislating Statutory Interpretation: Perspectives from the Common Law World (Carswell, 2018)).

It is worth noting at the outset that, when the IRAL’s very broad terms of reference were set by the Government, ouster clauses were not among the matters that the Review was asked to consider. The Review wastasked with considering the to some extent related, but nevertheless distinct, matter of justiciability, but concluded that legislation should notbe enacted to prescribe what matters should be considered non-justiciable. In doing so, the IRAL Report noted that legislation purporting to ‘roll back’ recent developments in the law on non-justiciability ‘would be regarded as amounting to an “ouster clause”’, and that ‘while the use of such a clause to deal with a specific issue could be justified’, it would be ‘likely to face a hostile response from the courts and robust scrutiny by Parliament’. Alongside this conclusion, the Review acknowledged that ‘[t]he decision to legislate in this area is ultimately a question of political choice’ but that if any such legislation were to be enacted, ‘Parliament’s approach should reflect a strong presumption in favour of leaving questions of justiciability to the judges before choosing to enact any such legislation’.

In deciding not to recommend legislation limiting justiciability, the Review obliquely considered the issue of ouster clauses more generally. On this matter, it advanced two key points. First, it said that ‘the doctrine of Parliamentary sovereignty means that Parliament has the power to legislate in such way as to limit or exclude judicial review’. Second, however, the Review went on to caution that: ‘The wisdom of taking such a course and the risk in doing so are different matters. Indeed, the Panel considers that there should be highly cogent reasons for taking such an exceptional course.’ Although the Review made no positive recommendations in respect of ouster clauses, the Government, in its Response, has placed the matter firmly on the table. Indeed, in his foreword to the Response, the Lord Chancellor and Justice Secretary indicates that the Government’s priority — ‘before considering whether any broader reforms are necessary’ — is to address ouster clauses and remedies.

As far as the Government’s proposals in this area are concerned, it is worth paying attention both to the content of the proposals themselves and to the constitutional position and assumptions that underpin and animate them. (I will say more about the latter in the final post in this series.) The content of the proposals centres, in essence, upon the proposition that ouster clauses should be given greater effect by the courts than they are generally accorded at present. In particular, the Government argues that ‘ouster clauses should be effective where there is sufficient justification’. (In using this term, it echoes the language deployed in one passage of the IRAL Report while conveniently overlooking the fact that the Report also says that ouster clauses are appropriate only when there are ‘highly cogent reasons’ capable of justifying the ‘exceptional course’ of excluding judicial review: a view that arguably sets the bar substantially higher than a requirement only of ‘sufficient justification’.)

The notion that ouster clauses should be granted effect where there is ‘sufficient justification’ raises questions about both what, in normative terms, ought to constitute such justification and how, in doctrinal and drafting terms, such a policy objective might be realised. The curious strategy on which the Government appears to have fastened involves the idea of a legislative ‘safety valve’: that is, a statutory provision governing how ouster clauses should be interpreted that would allow courts ‘to not give effect to an ouster clause in exceptional circumstances’. The Government goes on to suggest that such circumstances might arise ‘if there had been a wholly exceptional collapse of fair procedure’ or a jurisdictional error in the pre-Anisminic sense: that is, a ‘four corners’ excess of jurisdiction (such as, to use an example given elsewhere in the Response, a scenario in which a tribunal authorised to determine taxation-related matters took it upon itself to issue murder convictions).

This, in turn, relates to the broader strategy that is endorsed in the Response of dismantling the modern view that all judicially reviewable errors amount to jurisdictional errors, with the reintroduction of the notion of reviewable-but-non-jurisdictional errors paving the way for both the neutering of remedies (addressed in the first post in this series) and the reinvigoration of ouster clauses. Indeed, the broader strategy amounts to a pincer movement: ouster clauses would be invested with new potency, thereby making it easier to preclude judicial review to begin with, while some of the teeth would be drawn from remedies in order to render judicial review, where it remained available, less of a hindrance from the Government’s perspective.

In terms of doctrine and drafting, it is presumably intended that the ‘safety valve’ provision, authorising courts to ignore ouster clauses in the face of collapses of fair procedure or pre-Anisminic jurisdictional errors, would work hand-in-glove with the reimagination of the notion of jurisdictional error. Most judicially reviewable errors — which today constitute jurisdictional errors that can, thanks to that characterisation, generally be reviewed in spite of ouster clauses — would be reconceived as non-jurisdictional errors upon which, as a result of that re-categorisation, ouster clauses would begin to bite. It would then follow that, whenever an ouster clause was in play, judicial review would be possible only if (a) the error that had arisen belonged to the (now dramatically shrunken) category of jurisdictional error or (b) if a ‘safety valve’ provision permitted judicial review notwithstanding the ouster clause. It is quite possible, however, that categories (a) and (b) would prove to be coterminous (thus rendering the ‘safety valve’ redundant), given that it appears to be envisaged that the ‘safety valve’ provision may, in the first place, apply only to errors that would constitute jurisdictional errors in the attenuated sense envisaged by the Government.

The scale of the Government’s ambition becomes clearer still from the list, set out in its Response, of matters that will be legislatively stipulated to be evidence merely of ‘wrongful use’ of power rather than of ‘lack of power’. Matters that will be evidence only of ‘wrongful use’ of power will include the following:

  • Breaches of the principle of legality: Treating such breaches merely as wrongful uses of power, rather than as going to the absence of power, will transform the principle of legality. At present, that principle operates as an interpretive one, according to which courts construe legislation, including legislation that grants and delineates administrative powers, in line with fundamental constitutional rights and principles. Where such interpretation is possible, the effect is to ensure that the Government is, at root, denied the authority to interfere with such fundamental rights and principles.
  • All other standard public law grounds except lack of competence/power: The inclusion of this matter in the list of those that will go only to wrongful use as distinct from lack of power suggests that all of the normal grounds of judicial review, including procedural unfairness, Wednesbury unreasonableness, disproportionality (where relevant) and breach of legitimate expectation will, under the Government’s proposals, cease to constitute jurisdictional errors signifying lack of power and will instead amount only to wrongful uses of power.
  • Egregious errors committed in the course of exercising extant powers: The Government’s Response stipulates in terms that: ‘If a decision-maker has competence/power, no error however egregious can deprive one of that power.’ This would, in effect, reintroduce the so-called original jurisdiction fallacy, according to which jurisdiction, once established, cannot be lost, however unlawfully the power might have been exercised.

Redrawing the distinction thus between lack of power and mere wrongful use of power would have far-reaching effects. The vast majority of reviewable errors, having been reconceptualised as evidence merely of wrongful use rather than absence of power, would:

  • no longer constitute jurisdictional errors;
  • no longer engage the doctrine of nullity (thereby enhancing the capacity of unlawful acts to produce legal effects);
  • no longer be vulnerable to collateral challenge (i.e., challenge in private law or criminal proceedings, thereby raising the prospect, e.g., of people being convicted of criminal offences under unlawfully-made secondary legislation);
  • no longer be reviewable at all if an ouster clause existed and (as would be likely) was interpreted as permitting review only in respect of jurisdictional errors as distinct from errors evidencing mere wrongful use of power.

From all of this, it follows that the Government is proposing that the vast majority of unlawful administrative acts should either not be reviewable at all (because review would be impossible thanks to more efficacious ouster clauses) or should be reviewable subject to remedial consequences that would be significantly inferior to those that currently exist thanks to a combination of conceptual avoidance of nullity and collateral challenge and the introduction of a significantly attenuated remedial regime (as set out in my previous post). Of course, it is not necessarily the case that, following the implementation of these ‘reforms’, ouster clauses would be enacted left, right and centre. It is, however, crucial to note, by way of conclusion, that the proposed changes would both lay the foundation for the enactment of newly potent ouster clauses while simultaneously dismantling critical parts of the conceptual machinery that accounts for the relative effectiveness of modern administrative law — both in the face of ouster clauses and in the other senses set out above.

In its Response to the IRAL Report, the Government avers that: ‘The rule of law matters.’ But the devil is in the detail. And the detail of these proposals demonstrates a commitment on the part of the Government not to upholding the rule of law but, rather, to weakening judicial review and, in doing so, undermining the UK’s primary constitutional mechanism for securing Government under law. It is to be hoped that the normative undesirability of the suggested reforms is as obvious as the Government’s naked self-interest in proposing them.