A recently published commentary brought to my attention the High Court’s judgment in R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin). I highly recommend Philip Murray’s excellent, thoughtful piece on the case (in which the background and issues are clearly set out, relieving me of the need to do so here); what follows is perhaps little more than a gloss on what has already said, although our perspectives may differ somewhat.
As Philip Murray explains in his piece, the case concerned an attempt to judicially review the refusal of the Upper Tribunal to decline an application for permission to appeal. This engaged section 11A of the Tribunals, Courts and Enforcement Act 2007. That provision was inserted by section 2 of the Judicial Review and Courts Act 2022 in order to limit the (already narrow) scope for such judicial review challenges (‘Cart judicial reviews’) that had been acknowledged by the Supreme Court in R (Cart) v Upper Tribunal [2011] UKSC 28. Subject to certain exceptions such as bad faith, fundamental breach of natural justice and lack of ‘original jurisdiction’, none of which was held to apply in Oceana, section 11A provides that relevant decisions of the Upper Tribunal are ‘final’ and ‘not liable to be questioned or set aside in any other court’. For good measure, section 11A goes on to say that ‘the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision’ and ‘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’. In Oceana, Saini J concluded that none of the exceptions in section 11A applied and that there could therefore be no judicial review of the Upper Tribunal’s refusal to grant permission to appeal against the decision in question.
Two features of the statutory scheme at stake in Oceana are worth highlighting. First, while in some respects section 11A constitutes a strong ouster clause, in the sense that its drafting appears to leave little room for interpretive manoeuvre, it is also only a partial ouster clause, in that it leaves the door open to judicial review in respect of certain particularly egregious forms of error (that is, review remains possible in the exceptional circumstances outlined above). Second, the Upper Tribunal — that is, the body whose decisions are partially protected by the ouster clause — is an expert tribunal (in respect of which, as Lady Hale noted in Cart, reviewing courts rightly exercise considerable restraints) that enjoys (as Lord Dyson put it in Cart) a particular ‘status, nature and role’ (including as a superior court of record: see section 3(5) of the 2007 Act). Each of these aspects of the statutory scheme is highly salient to the question of how the ouster clause contained in section 11A should be interpreted, bearing in mind that the scale of the rule of law ‘threat’ posed by the absence of judicial review is informed, among other things, by the extent of the ouster (partial or complete?) and by the institutional credentials and expertise of the decision-making body (how constitutionally objectionable would it be for it, as distinct from the reviewing court, to have the final word on relevant questions?) This point was well captured by Lord Dyson in Cart when he said, ‘Lady Hale observes in para 51 of her judgment, that the real question in this appeal is what level of independent scrutiny outside the tribunal structure is required by the rule of law. To this question I would add the two words “if any”.’
It follows that, given the equivocation of the Supreme Court about whether Cart judicial reviews were ever constitutionally necessary, we should be unsurprised by Saini J’s conclusion that section 11A falls to be taken at face value, such that judicial review does not lie now that Parliament has directly and explicitly addressed the matter through a clearly worded ouster clause. All of this provides important context when it comes to considering the wider remarks on ouster clauses and constitutional principle proffered by Saini J towards the end of his judgment in Oceana:
Putting aside obiter observations in certain cases and academic commentaries, in my judgment, the legal position under the law of England and Wales is clear and well-established. The starting point is that the courts must always be the authoritative interpreters of all legislation including ouster clauses. That is a fundamental requirement of the rule of law and the courts jealously guard this role. However, the rule of law applies as much to the courts as it does to anyone else. That means that under, our constitutional system, effect must be given to Parliament’s will expressed in legislation. In the absence of a written constitution capable of serving as some form of ‘higher’ law, the status of legislation as the ultimate source of law is the foundation of democracy in the United Kingdom. The most fundamental rule of our constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme. The common law supervisory jurisdiction of the High Court enjoys no immunity from these principles when clear legislative language is used, and Parliament has expressly confronted the issue of exclusion of judicial review, as was the case with section 11A. In short, there is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen.
An obvious question is whether — and, if so, how — these remarks can be squared with the ostensibly rather different views expressed in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22. In particular, Lord Carnwath said that Parliament ‘cannot entrust a statutory decision-making process to a particular body, but then leave it free to disregard the essential requirements laid down by the rule of law for such a process to be effective’, and went on to state that ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’.
Are these (obiter) views simply inconsistent with the (also obiter) views of Saini J? Perhaps, at least to some extent. But it is also important to recognise that questions about how ouster clauses fall to be interpreted and given effect are highly context dependent. This means that even if we accept, with Saini J, that it is a constitutional function of parliamentary sovereignty that judicial review can be statutorily ousted even if doing so would affront other constitutional principles, interpretive questions remain, in respect of any given ouster clause, about whether and if so to what extent the ouster clause is to be taken to limit or displace the supervisory jurisdiction. Another way of putting this point is to say that Oceana was not an especially difficult case from the standpoint of constitutional principle, as is demonstrated by the Supreme Court’s equivocation about whether, in the first place, such principle required the availability of Cart judicial reviews. It is one thing for a clearly worded (albeit partial) ouster clause to tip the balance against (some) judicial reviews in such circumstances. It is another thing to conclude that a court would or should be equally sanguine if, in different circumstances, it was presented with an ouster clause that was prima facie an affront to basic constitutional values.
Public Law for Everyone 