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Is the Perfect Ouster Clause Possible?

Updated: 6 days ago




By Koh Jia Hao


Introduction

Ouster clauses are ‘[s]tatutory provision[s] which seek to limit [or completely oust] the ordinary jurisdiction of the court’ in reviewing decisions taken by public bodies [1].  It is trite law that courts would adopt a restrictive interpretation of them. The direct contention between ouster clauses and the court’s power gives rise to a pertinent question: how far would courts go in the face of a defiant Parliament seeking to completely preclude judicial review? Would courts abandon constitutional orthodoxy, encapsulated by the Diceyan proclamation of parliamentary sovereignty as ‘the right to make or unmake any law whatever; and further, that no person or body is recognised … as having a right to override or set aside the legislation of Parliament’ [2]? In this article, I examine the judicial treatment of ouster clauses, set against the backdrop of the diminishing principle of parliamentary sovereignty and the ascendant principle of the rule of law within the British constitutional framework. Lastly, I explore its potential link with the controversial Rwanda policy.

 

The Anisminic Interpretive Approach

The seminal case of Anisminic v Foreign Compensation Commission (“Anisminic”) expanded the scope of judicial review when it first laid down the restrictive interpretation of the ‘decision’ of a public body. This rendered a decision as a nullity and ultra vires (“beyond the powers”) if the public body made any error of law. Since the exercise of the public body’s power was merely a purported one (i.e. not legally valid after being nullified), such a decision would not be protected by an ouster clause and the courts have the right to intervene.

 

Previously, the law drew a distinction between non-jurisdictional errors of law made within the public body’s jurisdiction, and jurisdictional errors of law, where the body erred in determining if it in fact had the power to act. Prior to Anisminic, only the latter could render decisions ultra vires and susceptible to judicial review. However, Anisminic restricted the interpretation of a ‘decision’ to preclude ‘purported decisions’ that exhibit non-jurisdictional errors of law, thereby broadening the scope of judicial review.

 

A Veneer of Parliamentary Sovereignty?

The orthodox approach of interpreting ouster clauses as laid down in Anisminic starts from a robust presumption against an intention of Parliament to oust judicial review and undermine the rule of law. Therefore, one could suggest that a restrictive interpretation of ouster clauses strengthens, rather than weakens, the principle of parliamentary sovereignty, as it leaves open the theoretical possibility of Parliament employing unambiguous words to express in a crystal-clear way, the intention of excluding judicial review.

 

Hence, courts have characterised their attempts as interpreting, rather than striking down legislation, with Lord Wilberforce insisting in Anisminic that the court was merely ‘carrying out the intention of the legislature’ [3]. However, it could be argued that such an expansive interpretation of the ouster clause in a way wholly different from its natural meaning is tantamount to a refusal to apply legislation based on a ‘constitutional fundamental which even the sovereign Parliament cannot abolish’ [4]. On this view, the rule of law demarcates the extent of parliamentary sovereignty, echoed by Lord Woolf’s comment that ‘there are … limits on the sovereignty of Parliament which it is the courts’ inalienable responsibility to identify and uphold’ [5].

 

Tentative steps beyond Anisminic

This principle was reinforced in R (Privacy International) v Investigatory Powers Tribunal, where the Supreme Court held that the Investigatory Powers Tribunal’s decisions were nonetheless subject to judicial review, despite the existence of an ostensibly clearly-worded ouster clause, which provided that the ‘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’ [6]. Starting from a ‘fundamental presumption’ that Parliament would legislate in accordance with the rule of law [7], Lord Carnwarth, following Laws LJ in R (Cart) v Upper Tribunal, affirmed that only ‘the most clear and explicit words’ may rebut that presumption [8]. Lord Carnwarth then considered that the ouster clause in question is not as clear as it might have been, since Parliament could have adopted ‘a more explicit formula […] excluding challenges to any determination or “purported” decision as “a nullity by reason of lack of jurisdiction, error of law, or any other matter”’ [9]. Satisfying the criteria of ‘the most clear and explicit words’ is accordingly an extremely (or perhaps impossible) bar to surmount.

 

More revolutionarily, Lord Carnwarth went further and added, in obiter, that ‘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’ [10]. Such a statement would be a death blow to the orthodox Diceyan conception of parliamentary sovereignty, since it explicitly carves out judicial review as something beyond Parliament’s authority to abolish.

 

Eclipsing Parliamentary Sovereignty

In recent years, judges have argued, though only in obiter, that parliamentary sovereignty ‘is no longer, if it ever was, absolute’, going as far as to say that ‘the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’ [11]. In R (Jackson) v Attorney General, Baroness Hale said, in obiter, that the courts may reject a legislative attempt to ‘subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny’ [12]. 

 

Although the comments made in Jackson and Privacy International hinting at strong-form judicial review were obiter, the mere suggestion is enough to be a compelling factor that restrains Parliament. Michael Foley posits in his theory of constitutional silences, where ambiguities are deliberately left unresolved, that these tacit constitutional silences and abeyances serve as ‘an acceptable strategy for resolving conflict’ [13], ‘assimilating… conflicting principles of government within a political solidarity geared to manageable constitutional ambiguity’ [14]. Parliament, seeking to avoid a showdown with the courts, would likely stay clear of introducing legislation that would trigger their wrath.

 

Though constitutional silence has obscured the relative standing of the rule of law and parliamentary sovereignty, the trajectory of recent constitutional discourse suggests a recrafting of the two principles in order to strengthen the overarching ideal and hypothesis of constitutionalism [15], with the rule of law standing at ‘the apex of that framework’ [16], being the superior fundamental principle should the two come into unavoidable conflict.

 

Stepping back

However, in some cases, courts have also stepped back and have taken a more cautious approach when faced with strong ouster clauses while reaffirming the constitutional orthodoxy of parliamentary sovereignty. In R (Oceana) v Upper Tribunal, later affirmed by the Court of Appeal in R (LA (Albania)) v Upper Tribunal, the High Court upheld the effectiveness of the ouster clause in section 11A of the Tribunals, Courts and Enforcement Act 2007, introduced by section 2 of the Judicial Review and Courts Act 2022. In order to circumvent Anisminic-style reasoning that decisions made with errors of law are nullities not covered by any statutory ouster clause, Parliament expressly drafted section 11A to exclude such jurisdictional review too, articulating that ‘the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error in reaching the decision’.

 

In response, Saini J in Oceana and Dingemans LJ in LA (Albania) accepted that the wording of section 11A was ‘sufficiently clear to change the scope of judicial review’ [17], affirming that ‘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’ [18].

 

Such a cautious approach might be explainable by the fact that lower courts might not be willing to adopt the unorthodox position that has been suggested by the Supreme Court - namely, that parliamentary sovereignty has been eclipsed by the rule of law. Additionally, the nature of the ouster clause in question would greatly affect its impact on the rule of law, thereby influencing a court’s decision on whether to give effect to it.

 

Two distinctions can be drawn. Firstly, does the clause purport to oust the complete jurisdiction of the courts or does it leave open a possibility for judicial review for certain egregious forms of error? Even though Section 11A is expressed in clear terms affording little space for interpretation, it is nevertheless a partial ouster clause since judicial review is still possible in certain exceptions, such as bad faith, fundamental breach of natural justice, and lack of pre-Anisminic “original jurisdiction”. Secondly, how court-like is the public body whose decisions are protected by the ouster clause? The Upper Tribunal, whose decisions are protected by Section 11A, possesses similar institutional capacities, expertise, and processes as the courts, thereby reducing the detriment on the rule of law, in particular its requirement of fair adjudication. Therefore, the ouster clause does not pose a sufficient threat to the rule of law to justify attenuating the principle of parliamentary sovereignty, especially by a non-apex court.

 

The courts stepping back in Oceana and LA (Albania) therefore signify their reluctance to diminish the traditionally dominant constitutional pull of the principle of parliamentary sovereignty, at least in the High Court and the Court of Appeal. Though the dicta in the apex court in Jackson and Privacy International were trailblazing, they have not managed to find a foothold in the decisions of lower courts.

 

Waking the Sleeping Constitutional Crisis?

As of the time of writing, the UK Government has published the Safety of Rwanda (Asylum and Immigration) Bill. The Supreme Court had earlier held that the government’s Rwanda policy was unlawful for breach of the principle of non-refoulement, which prohibits countries from returning asylum-seekers to a country where their life or freedom would be threatened or where they would face a real risk of torture or inhuman or degrading treatment. Under the Government’s proposed Rwanda policy, asylum-seekers in the UK would be handed over to Rwanda, which then determines their asylum claims. However, the Supreme Court found on the facts that the principle of non-refoulment would likely be breached by the policy in effect.

 

In essence, the new Bill seeks to overturn the Supreme Court’s finding of fact that the Rwanda policy is failing to respect the non-refoulement principle, which is recognised in various international treaties and given effect in domestic law by Section 3 and 6 of the Human Rights Act 1998 (‘HRA’). Clause 2(1) of the Bill provides that ‘every decision-maker must conclusively treat the Republic of Rwanda as a safe country’. Additionally, clauses 2(3)-(4) would prohibit courts from reviewing executive decisions on the ground that Rwanda is not safe. Therefore, the courts, which are classed as ‘decision-makers’, would be required to act as if Rwanda was a safe country, notwithstanding overwhelming evidence to the contrary. Furthermore, to make its intention unambiguously clear, the Bill proceeds to disapply several sections of the HRA, in particular the Section 3 interpretive powers of domestic courts and the Section 6 duty for public authorities to act compatibly with European Convention on Human Rights (‘ECHR’) rights.

 

However, the UK Government has stopped short of a full ouster of jurisdiction. Firstly, the Bill, if enacted, would not disapply Section 4 HRA, which gives courts the power to issue declarations of incompatibility when legislation contravenes ECHR rights. Although such declarations of incompatibility have no effect on the offending legislation’s legal validity, they impose a substantial political cost on Parliament, rendering Parliament’s ultimate authority hard to realise in practice [19]. Secondly, there remains some, albeit limited, scope for judicial review, with clause 4 carving out a possibility for the courts to challenge removal decisions ‘based on compelling evidence relating specifically to the person’s particular individual circumstances’, but not on the grounds that ‘Rwanda is not a safe country in general’.

 

If enacted, the Bill would undoubtedly be challenged in both the domestic and Strasbourg courts. In the domestic courts, the constitutional ambiguities surrounding the relationship between Parliament and the courts might finally be forced out of the shadows. Facing legislation that subvert both the rule of law and separation of powers by undermining the judicial function and curtailing judicial review, the judiciary may, following Lord Carnwarth’s dicta in Privacy International, take the radical leap and extinguish the orthodox understanding of parliamentary sovereignty by holding that Parliament had overstepped its authority in ‘determin[ing] the limits set by the rule of law to the power to exclude review.  

 

However, the proposed ouster clause leaves open the door for some judicial review, and the courts’ s.4 HRA power to issue declarations of incompatibility remains intact. Hence, it remains unlikely that a court would cross the Rubicon and threaten the fragile détente between Parliament and the judiciary by declaring the Bill invalid.

 

Conclusion

While the Supreme Court has taken tentative steps to suggest that the orthodox understanding of parliamentary sovereignty is ‘out of place in the modern United Kingdom’ [20], a dramatic showdown with Parliament is a fight both parties would like to avoid. This particularly British sense of ‘reserve’ [21] and institutional self-restraint seems to have motivated the UK Government’s decision not to include a complete ouster clause in the new Rwanda Bill. However, even though the present Government lacks sufficiently strong political capital to accept the political cost incurred through a clash with the courts, one cannot guarantee that a future Government with stronger support would not attempt to pass the perfect complete ouster clause with no room for interpretive manoeuvre. Would the courts parry by striking back at the principle of parliamentary sovereignty? Despite the resulting constitutional obscurity, such a question may be better left unanswered.





References

[1] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 [170]

[2] A V Dicey, An Introduction to the Study of the Law of the Constitution (first published 1885, 10th edn, London Macmillan 1959) 39–40

[3] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 [208]

[4] Wade and Schwartz, Legal Control of Government (Oxford Clarendon Press 1972) 605

[5] Droit Public: English Style [1995] PL 57, 69

[6] Regulation of Investigatory Powers Act 2000, s 67(8)

[7] R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [37]

[8] R (on the application of Cart) v The Upper Tribunal [2011] QB 120 [31]

[9] R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [111]

[10] Ibid, [144]

[11] R (Jackson) v Attorney General [2005] UKHL 56 [104] & [107]

[12] Ibid, [159]

[13] Michael Foley, The Silence of Constitutions (Routledge, 1989) xi

[14] Ibid, [60]

[15] Jackson, (n 11) [102]

[16] Martin Loughlin, ‘The Apotheosis of the Rule of Law’ (2018) 89 TPQ 659

[17] R (LA (Albania)) v Upper Tribunal [2023] EWCA Civ 1337 [31]

[18] R (Oceana) v Upper Tribunal [2023] EWHC 791 [52]

[19] Mark Tushnet, ‘New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries’ [2003] 38 Wake Forest Law Review 813, 824

[20] Jackson, (n 11) [102]

[21] Aileen Kavanaugh, ‘The British sense of reserve has much to commend it, but it would be difficult to codify in a constitution’ (Democratic Audit, 27 October 2013)

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