Ouster clauses are provisions in legislation that seek to prevent judicial review of the exercise of public power. Since they insulate government action from being reviewed by the courts, ouster clauses reveal the tension between the principles of parliamentary sovereignty and the rule of law. Provisions in an Act of Parliament ousting the possibility of judicial review may be legitimate as Parliament has legislative supremacy, but the courts must approach them with suspicion as they undermine the rule of law by insulating government decisions from challenge.
This blogpost explains the long-running issues regarding judicial interpretation of ouster clauses and draws a distinction between “strike back” ouster clauses and more limited ones. It demonstrates that the courts have been more willing to preserve the effect of more limited ouster clauses, as these do not pose an acute threat to constitutional principle.
Key authorities
The debate on judicial treatment of ouster clauses began with Anisminic.[1] During the Suez crisis, the Egyptian government had seized various mining properties, including those owned by Anisminic, as part of a wider nationalisation programme. The British government then made Orders in Council under the Foreign Compensation Act 1950 distributing the financial compensation that had been paid by the Egyptian government in exchange for the nationalised properties.
Anisminic challenged its exclusion from the compensation scheme and the Foreign Compensation Commission’s subsequent determination that it had not been entitled to compensation. Section 4(4) of the 1950 Act had prohibited compensation determinations from being “called into question in any court of law.” However, the House of Lords held that ouster clauses could only be enforced against valid determinations – not nullities based on errors of law. As the Foreign Compensation Commission had erred, their purported determination amounted to a nullity and was accordingly open to judicial review.
Decades later, in 2019, this reasoning was famously endorsed by the UK Supreme Court in Privacy International.[2]Central to the case was whether determinations by the Investigatory Powers Tribunal – a specialist body tasked with overseeing the Security Services – were open to legal challenge. Although 67(8) of the Regulation of Investigatory Powers Act 2000 had precluded its decisions from being subject to any form of judicial questioning, the Supreme Court held that that ouster clause did not explicitly apply to determinations vitiated by errors of law.[3] In other words, there is a strong legal presumption that Parliament did not intend to exclude courts from being able to question invalid decisions made based on errors. Judicial review could only be excluded by clear and explicit wording.
Although the 2019 decision in Privacy International remains generally applicable, one area where the law has changed is appeals to Upper Tribunal decisions. Initially, the main authority was Cart. This involved a less explicit ouster clause contained in the Tribunal Courts and Enforcement Act 2007 which established a new tribunal system to ease the pressure off judicial review. Under sections 3(5) and 11(1) , the Upper Tribunal was established as a superior court of record and a right to appeal was codified in some circumstances, though certain types of decisions were explicitly excluded. The question in Cart was whether decisions of the Upper Tribunal should be subject to judicial review. There, the Supreme Court held that there was “nothing within the 2007 act which purports to oust or exclude judicial review of the unappealable decision of the Upper Tribunal” and that generally speaking, ouster clauses would only be enforceable if Parliament used “the most clear and explicit language.”[4] In other words, the Court found that while certain decisions by the Upper Tribunal could not be appealed, if the decision was affected by an error of law, the Upper Tribunal’s denial of permission could, in certain circumstances, be quashed. Challenges pursued on this basis have since been known as “Cart JRs.”
Striking back and clamping down
Turning to government responses, in recent years, ouster clauses have been increasingly prevalent in legislation, sometimes as part of an attempt to “strike back” against adverse judgments. Coined by Richard Rawlings and Carol Harlow, the term “striking back” refers to negative responses to court rulings whereby the government seeks to reverse a judicial decision it dislikes and prevent future legal challenge.[5] A recent example is the Dissolution of Parliament Act 2022, which sought to prevent future challenges akin to Miller 2 by reviving the prerogatives power to dissolve Parliament and indemnifying its exercise from being questioned in any court or tribunal (section 3). Another example is the Safety of Rwanda Act 2024 which reversed the Supreme Court’s judgment by requiring decision-makers to treat Rwanda as a safe third country for asylum seekers and by prohibiting any court or tribunal from considering the complaint that removal to Rwanda contravenes international law (section 2). These two politically loaded ouster clauses have yet to be tested in court.
However, not all recent ousters have been enacted for purely political reasons. The previous administration instituted a more reasonable partial ouster clause based on the advice of the Independent Review of Administrative Law, which I summarised in a previous blog. The Review had concluded that the Miller cases had not amounted to judicial overreach, and it explicitly advised against placing non-justiciability on a statutory footing. However, it suggested that Cart JRs could “usefully be cut back” citing the fact that only 0.22 per cent of such claims proved to be successful. Thus, Cart JRs were characterised as a continued expenditure of judicial resources that “cannot be defended.”
These proposals were placed on a statutory footing through section 2 of the Judicial Review and Courts Act 2022 which inserted a provision in the 2007 Act – section 11A – stating that decisions of the Upper Tribunal were “final, and not liable to be questioned or set aside in any other court.” Challenges on the basis that the Upper Tribunal had exceeded its powers and jurisdiction by reason of any error were expressly precluded, though challenge pursued on the basis that the Upper Tribunal acted in bad faith or in a manner amounting to a fundamental breach of the principle of natural justice were expressly permitted. This more limited form of ouster clause has been tested in the cases Oceana and Albania, where the courts have enforced it without thinking twice.[6] As Philip Murray and Mark Elliott have argued, the fact that the amended 2007 Act allows for some judicial review suggests that the ouster clause is not an acute threat to the rule of law. Precisely because the courts have not been entirely stripped of their jurisdiction, they have been more willing to acquiesce to the idea that there is nothing inherently unconstitutional about imposing limitations on the scope of judicial review.
Conclusion
Politically-motivated ouster clauses should remind us of the potential threat to the rule of law that arises when governments seek to overturn or limit the jurisdiction of the courts. Conversely, section 11A of the Tribunal and Courts Enforcement Act 2007 shows that ouster clauses can be drafted in a manner that enables the courts to feel more secure in their position as a final safeguard against the abuse or misuse of power. The courts have acquiesced to this kind of ouster clause – even though it raises significantly the bar for challenging Upper Tribunal decisions – because it does not curtail their role altogether. This development in the enforcement ouster clauses contains a wider lesson for governments seeking to avoid the possibility of legal challenge: careful reforms which leave open the possibility of judicial intervention in extreme circumstances are a significantly more successful tool than the blunt force of political strike-back.
Tasneem Ghazi.
Tasneem is a PhD student at the UCL Faculty of Laws. Tasneem previously completed the Barrister Training Course while working part-time as a research assistant at the Constitution Unit. In 2021, she interned at the Institute for Government and at the UK in a Changing Europe. Tasneem holds an MA in History from King’s College London, and an LLB in Politics, Philosophy and Law.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL)
[2] R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2019] 2 WLR 1219
[3] ibid [107]
[4] R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 [30] [ [37]
[5] Richard Rawlings and Carol Harlow, ‘‘Striking Back and ‘Clamping Down’: An Alternative Perspective on Judicial Review’ in J Bell at al, Public Law Adjudication in Common Law Systems (Oxford University Press 2016) 301-302
[6] R (Oceana) v Upper Tribunal [2023] EWHC 791 (Admin); R (LA (Albania)) v Upper Tribunal [2023] EWCA Civ 1337