Admin Law Ouster Clause Essay

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Foundations Of Judicial Review Revision

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Administrative Law: Foundations of Judicial Review. 1 Introduction: What is the constitutional basis of Judicial Review?
There is a good deal of literature concerning the 'constitutional foundations' of judicial review. In these lectures, we will address three main sets of issues.

The nature of the question. When we inquire about the constitutional foundations of judicial review, what exactly are we asking about?
What gives the courts constitutional authority to strike down executive action?
o What gives them the right to determine what action is unlawful?
o How do courts work out what action is unlawful?
o What, if anything, constrains the courts when they do this?
o What is the legal nature and source of the limits upon executive power enforced upon the courts by judicial review?
o How are these powers reconciled with statute and constitutional principles such as sovereignty?
The relevance of the question. Does is matter what the constitutional basis of judicial review is—and, if so, why?
o


o




o



Yes: It relates to fundamental Qs such as parliamentary sovereignty. Basis of JR might influence the content of the rules applied by courts. Relationship between basis of JR and the effectiveness of ouster clauses?
Relationship between the basis of JR and availability of 'collateral challeneg'?
NO: Purely theoretical debate. Basis of review doesn't influence the content of rules applied by the courts. Doesn't really affect how courts decide cases. The answers to the question. What, then, are the constitutional foundations of judicial review?
o

There



are competing answers to the question. UV model. Modified UV model. Common law model. JR as a 'constitutional fundamental'.

2

The ultra vires model

2.1

What is the ultra vires model?

The principle is an attempt at justifying Judicial Review of executive acts and decisions. 'Courts may intervene whenever a decision maker acts ultra vires - that is, 'beyond the powers' conferred by legislation - while intra vires acts are lawful and unimpeachable. Thus the principle provides a powerful justification for

the exercise of supervisory jurisdiction, because it argues that courts are only carrying out parliament's intentions when enforcing the limits that are found (expressly or impliedly) within statute. Note the following points about the ultra vires model:

The 'central principle of administrative law': Wade and Forsyth

Key question for court: is decision within conferred authority?

The key question is whether the administrative act or decision under challenge within or outside the authority conferred upon the agency by parliament through the medium of the relevant statute.

But how is the court to answer this question?

Through the interpretation of statute - interpreting the legislation in order to determine the extent of the agency's power. W&F: Where the empowering act lays down limits expressly, this just involves construing statutory language and applying it to the facts.

e.g. 'Land may be taken by compulsory purchase, provided it is not part of a park'. The court need only determine whether the land is part of a park and decide accordingly. This is uncontroversial - a decision maker's decision to purchase land in Hyde Park could be struck down as ultra vires.

But where an act confers discretionary power on a decision maker, the question is not so simple.

e.g. 'Land may be taken by compulsory purchase, providing the Minister doesn't think it is part of a Park'. Taking the statutory language literally, if the Minister states he is of the opinion that Hyde Park isn't a park, the court in applying the statute could not say that he is operating outside of the confines of his jurisdiction. However principles of good administration require that there can be no malpractice of this kind. The court will intervene and determine the decision to be ultra vires if it was taken unreasonably, in bad faith, or on no proper evidence - that is the developed grounds of judicial review. This can only be achieved through the art of statutory construction. It is presumed that parliament did not intend that such abuses could take place, so certain safeguards against abuse are implied within the act.

As with substance - whether discretion has been exercised UV - so with procedure, too.

2.2

e.g. It is assumed that parliament when conferring power intends that it be used fairly and in line with due consideration of the rights and interests of those that may be adversely affected. This means judges read all statutes as having implied terms relating to, for example, procedural fairness. Parliament effectively legislates against a background of pre-made judicial principles pertaining to fairness - and in creating these principles, judges take parliaments agreement for granted.

What are the ultra vires model's attractions?

Although, as we will see, the ultra vires model has been heavily criticised—to such an extent that it does not, in its unreconstructed form, enjoy any serious support amongst commentators—it does have certain attractive features. First, it enjoys a degree of judicial support—although it is certainly arguable that judicial reliance upon the rhetoric of 'ultra vires' does not necessarily imply thoroughly

thought-through support for the ultra vires model. See, for example, myriad references to 'ultra vires' in the speeches in Boddington v British Transport Police [1999] 2 AC 143, and, in particular, Lord Steyn's comments (at 171): Leaving to one side the separate topic of judicial review of non-legal powers exercised by non statutory bodies, I see no reason to depart from the orthodox view that ultra vires is "the central principle of administrative law" as Wade and Forsyth … described it. Note also Lord Browne-Wilkinson's comments in R v Hull University Visitor, ex parte Page [1993] AC 682 at 701: The fundamental principle [of judicial review] is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. In all cases . . . this intervention . . . is based on the proposition that such powers have been conferred on the decision maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense ... reasonably. If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting ultra vires his powers and therefore unlawfully. He anchors what courts do in underlying legislation: 'powers conferred on underlying assumption. But there is ambiguity as to whether these judges are endorsing the specific doctrine - or just using 'ultra vires' as a synonym for 'unlawful' - without actually referring to the concept itself. Secondly, in some (but, as we will see, not all) circumstances, the ultra vires doctrine seems accurately to capture what is going on, in terms of courts reviewing executive action for compliance with standards which are laid down, or otherwise apparent from, the legislation—and that seeking to explain what the courts are doing in any other way would be unconvincing. There are clearly many instances of the courts following the ultra vires doctrine - or at least doing what the doctrine would tell them to do, if they were following it. Consider, for instance, the following cases:

R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of (…). The question was whether the claimant in the case was a child. The supreme court said that it was within their jurisdiction to decide on whether C was a child. This is a clear example of a court deciding on the legality of administrative action with reference to a statute - they are following, therefore, the kind of process that the ultra vires principle says JR is all about.

Lloyd v McMahon [1987] AC 625

Lord Keith decided that oral hearings were not necessary before statutory auditors issued ceterficates of a penal nature to councillors by reference to the lack of an explicit provision for it within the statute - noting that explicit provisions had been found in other similar statutes. The case demonstrates a clear link between what the court decides and what the statute says - applying the thinking of the ultra vires principle.

R v Secretary of State for the Home Department, ex parte Venables

Home Secretary set the tariff period of child murderer Jon Venables, on a once and for all basis. It was held that in doing so, the minister was acting unlawfully - the statute

imposed a duty to have regard to the welfare of the child or young person - requiring ongoing review of the tariff period - not setting once and for all. He was acting ultra vires. This is not, however, to suggest that all instances of judicial review can readily be related to the terms of the relevant legislation. This point is developed below. Thirdly, viewed from the perspective of judicial politics, the ultra vires model is highly convenient:

Judges as 'modest underworkers': Cotterell, 'Judicial Review and Legal Theory' in Richardson and Genn (eds), Administrative Law and Government Action (Oxford 1994) at 16

Cottrell suggests that the judges play a role as 'modest underworkers'. The implementation of parliamentary intention simply protects judges against charges of activism or judicial supremacism.

'...[T]he logic behind the doctrine provides an inherent rationale for judicial review ... The self-justification of the ultra vires doctrine is that its application consists of nothing other than an application of the law itself, and the law of Parliament to boot': Baxter, Administrative Law (Cape Town 1984) at 303.

Judges by employing the theory are cloaking judicial review under parliamentary sovereignty. They aren't just implementing the will of parliament, but the will of sovereign parliament. Fourthly—and, according to some accounts, most significantly—the ultra vires model provides a way (indeed, the way) in which judicial review may be reconciled with parliamentary sovereignty. This point is related to the third, but whereas the third point is concerned with the implications of judicial review from the perspective of judicial politics, the fourth argument is concerned with the implications of judicial review from the standpoint of fundamental issues of constitutional architecture. Because the fourth argument has proven to be pivotal in the debate about the foundations of judicial review, we need to consider it in some detail.

2.3

The parliamentary sovereignty argument

There is a 'positive aspect' to the argument: courts are implementing the sovereign will of parliament, making JR legitimate. But there is also a larger, bolder claim - the 'negative aspect'. This says that JR is only legitimate because courts are implementing the sovereign will of parliament. Ultra vires is therefore the only way of reconciling JR with sovereignty. The nub of the parliamentary sovereignty argument—which holds that ultra vires is imperative if judicial review is to be legitimate in the face of legislative supremacy—
was set out in the following terms by Forsyth, 'Of Fig-Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review' [1996] CLJ 122 at 133-4: The analytical difficulty is this: what an all powerful Parliament does not prohibit, it must authorise either expressly or impliedly. Likewise if Parliament grants a power to a Minister, that Minister either acts within those powers or outside those powers. There is no grey area between authorisation and the denial of power … [T]o abandon ultra vires is to challenge the supremacy of Parliament. Forsyth makes two key claims - his 'analytical difficulty'.

Intra vires and ultra vires as mutually exclusive concepts - 'there is no grey area'.
 Intra vires and ultra vires are collectively exhaustive - a decision can't be anything but UV or IV. The court therefore can intervene where there's power used UV, but it would be constitutionally improper to do so where the power is used IV. Forsyth further developed this argument in 'Heat and Light: A Plea for Reconciliation' in Forsyth (ed), Judicial Review and the Constitution (Oxford, Hart 2000). Consider the following example, which may help to illustrate Forsyth's argument: Legislation authorises the Minister to grant planning permission for 'major infrastructure projects'. In (purported) exercise of this power, the Minister grants permission for the construction of: i. a new restaurant; and Not a MIP, therefore taken outside of the explicitly conferred power. ii. a new airport, but in a procedurally unfair manner. This is not authorised by parliament because of an implied term requiring procedural fairness. Parliament could not have intended that the power be possible to exercise unfairly. According to the ultra vires doctrine, both decisions will be unlawful. But we need to think about the following questions: i.

Why will each decision be unlawful according to the ultra vires doctrine?

ii. Why does Forsyth contend that the courts will only be justified in striking down the decisions if they are ultra vires? Because if the decision is not taken UV, it must have been taken IV - and wouldn't therefore be constitutionally legitimate to strike down.

3

Criticisms of the ultra vires model

Criticism of the ultra vires model is not hard to come by—and much of it is compelling. The criticisms take two main forms, which reflect the two principal claims of ultra vires theorists concerning, respectively, the explanatory power and the constitutional necessity of the ultra vires model.

3.1

Criticism I: The ultra vires model lacks explanatory power

The central point here is that (so it is said) it is not believable that the courts' task in judicial review cases is simply one of statutory interpretation. As Laws, 'Law and Democracy' [1995] PL 72 at 78-9 puts it: In the elaboration of [principles of judicial review] the courts have imposed and enforced judicially created standards of public behaviour … [T]heir existence cannot be derived from the simple requirement that public bodies must be kept to the limits of their authority given by Parliament. Neither deductive logic nor the canons of ordinary language ... can attribute them to that ideal, since … in principle their roots have grown from another seed altogether ... They are, categorically, judicial creations. They owe neither their existence nor their acceptance to the will of the legislature. They have nothing to do with the intention of Parliament, save as a fig-leaf to cover their true origins. We do not need that fig-leaf anymore…

The theory can't really explain what's going on - is it really believable that the courts are genuinely trying to discern what parliament intended when they wrote the statute?
Critics say that clearly something more is going on - Judges may be clever, but not enough to infer the entire law of JR from, very often, parliamentary silence. Most statutes don't discuss the issues that come up!
There are cases that clearly turn on parliamentary intention - Croydon, Venables. But what about other grounds of judicial review - Wednesbury unreasonableness, substantive legitimate expectations etc - that surely can't be directly read from statutes. Can we really get from the statute to the individual grounds of review? The basic 'fig leaf' argument is that claiming that all grounds of JR are intended by parliament is mere pretence. From this, a series of more specific criticisms follow (on which see Laws, 'Law and Democracy' [1995] PL 72 and Craig, 'Ultra Vires and the Foundations of Judicial Review'
[1998] CLJ 63):

Ultra vires as a 'fig-leaf' (Laws)

Realistically we know that the law of JR is law of judicial creation - like tort or contract. The wider significance is that: a. Judges shouldn't be allowed to hide behind such pretence; and b. In doing so they escape justifying their development of grounds of review - claiming that they are simply effecting parliament's intention.

Development of judicial review over time (Craig)

This is a body of law that has grown up in a very short period of time. Admin is a very recent creation. Furthermore the content of the law is ever changing and not static - a. New grounds emerge; and b. Existing grounds (e.g. Wednesbury) are developed. If the UV view is to be believed, this has happened because parliament intended it that way. But how can judges just divine this parliamentary intention? Critics say that these are actually changes that judges have authored - as judges were authors of the grounds of review in the first place.

Ouster clauses (Anisminic v Foreign Compensation Commission [1969] 2 AC 147) (Craig)

Held, review of wrong determinations was not prohibited by the ouster clause - they were not determinations. Critics of the UV doctrine say that 'you can't have your cake and eat it'. Parliament seemed very clearly to have the intention to prohibit review of the body's decisions. How can you say that the court were only giving effect to the will of parliament by seemingly very clearly undermining it.

Judicial review of non-statutory power (on this point, see, in particular, Oliver, 'Is the Ultra Vires Rule the Basis of Judicial Review?' [1987] PL 543) (Also Craig)

JR doesn't only apply to statutory power. It has now been rolled out to prerogative (GCHQ) and prerogative (Datafin, Takeover Panel) powers. How can the UV doctrine account for this? There is no statute to interpret. At the very least, this criticism suggests that UV is an incomplete explanation. Perhaps though this demonstrates that it is flawed, and should be rejected entirely. But must the review of the exercise of statutory and non-statutory powers rest on the same foundation?

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This is a sample of our (approximately) 13 page long Jurisdiction Of Judicial Review notes, which we sell as part of the Administrative Law Notes collection, a 1st package written at Oxford in 2017 that contains (approximately) 754 pages of notes across 57 different documents.

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Jurisdiction of Judicial Review 'The reality is that the conception of legality within judicial review is used as a label to cover a variety of more specific grounds of challenge relating to the rule of law.' (Craig). This is the first of Diplock's three grounds of JR in GCHQ: i. Illegality; ii. Irrationality; iii. Procedural impropriety. Such review therefore inquires as to whether the actions of a public body were legal - whether the body had the power to act in the way it did by virtue of the type of body it is.
 It is either within the body's limited scope of legal decision-making, if it is outside (ultra vires).
 Craig: a jurisdiction is a legal power to decide a claim or issue with legal effect. Jurisdiction therefore relates to whether the court can review the decision at all. This is of fundamental importance because of the underlying doctrine regarding how far the judiciary should be able to review the decisions of a public body. Distinction:

1. Jurisdictional error (review): o This is where a public body strays out of a subject area, type of issue, type of question, that it has no authority to decide with legal effect.

2. Review of discretion (appeal): o Review of discretion concerns the merits of a particular decision. This is not within the jurisdiction of the court, since it is not for them to review the substance of a decision. X and Y factors: X factors relate to the preconditions that trigger executive jurisdiction for a particular action; Y factors are statements as to what the executive can actually do.
 There is an issue that the executive, itself, decides whether the X factors are satisfied. o As such, this gives rise to issues regarding institutional competence - who is better placed to decide the X and Y factors?
Institutional competence: which body should make the decision?
Anisminic illustrates the underlying tension between the competence of executive bodies, and the purview of the court.
 The issue was essentially one statutory interpretation, with the Foreign Compensation Act 1950 providing 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.' o However, the decision was held as reviewable.
 Whilst the courts act on the basis that they are effectuating the will of Parliament in reviewing public bodies, that purpose does not have inherent limits as to the extent of review.

Reasons for the Courts to display deference:

1.

Lack of expertise: o Subject matter may be specific and sensitive - the risk is that the court makes decisions about that subject area with ignorance or false assumptions of the context/the area.

2. Public resources: o Courts have to be wary that order result in public expenditure - public bodies cannot be treated in the same way as private parties.

3. Understanding of statute policy: o It may well be the case that, by virtue of their expertise, executive bodies (especially specialist ones) have a better understanding of the policy under the statute. Reasons for the Courts to be more intrusive:

1. Uniformity under the law (risk of unpredictability): o Definition of terms and so on may differ in particular contexts, but it is unsatisfactory for the same word to have different meanings, and for inconsistency to carry legal effect. o Interpreting X factors differently means applicants are treated differently.

2. Restraint of public bodies: o The policy concerns can be said to go the other way - need to have some limitations on the ambit of public bodies, and it is of concern that public bodies are able to make decisions with legal effect. Most of the contention is in attempting to find a middle ground.
   Notable that remedies in administrative law are discretionary.

Errors of Law The collateral fact doctrine: Based on established kinds of cases where the courts are permitted to intervene.
 As such, decisions found to be of a kind recognised as reviewable were considered jurisdictional; those that were outside this recognised ambit were non-jurisdictional. Craig: 'what the preliminary or collateral fact doctrine sought to do was to distinguish those elements within the bracket which could be regarded as conditioning the power of the tribunal to go and consider the merits from the merits themselves.' i.

ii.

Jurisdictional errors. o Errors relating to the type, or scope, of a case - if the type or scope of the case was within the scope of that tribunal, then the subsequent decision could not be reviewed. Non-jurisdictional errors. o Errors relating to the truth or detail of a case.

This test was, previously, the orthodoxy - however, it was constantly used as result-based reasoning.
 Whenever the Courts wanted to review a decision, they held it as jurisdictional; when they wanted to leave it alone, they held it as non-jurisdictional.

o

For example, in Lane's dissent in Pearlman v Keepers, he argued that all the judge had done in the case was to 'come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law.'

However, the doctrine is fundamentally flawed.
 The distinction between types and incidences is impossible to draw. o The 'type' of case can only be determined with reference to instances of the type. o Only really useful when the answer is obvious; yet, in such cases, do not need it in the first place.
   Wade and Forsyth made these points: the concept of jurisdictional error has been stretched to breaking point, and 'it requires only a simple verbal manipulation to represent any error of law as the result of the tribunal asking itself a wrong question or imposing some wrong requirement… any error of law could be shown to involve an excess of jurisdiction.' Denning in Pearlman was honest about this and suggested the test should be discarded: 'so fine is the distinction that in truth the High Court has a choice before it whether to interfere with an inferior court on a point of law. If it chooses to interfere, it can formulate its decision…'
 He argues that it is intolerable that an individual's rights should depend on the judge that tries the case. Instead, 'no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends'. Change in doctrine: Anismic, though not formally abolishing the collateral fact doctrine, cast it into serious doubt.
 'A tribunal may quite properly validly enter upon its task and in the course of carrying it out make a decision which is invalid - not merely erroneous. This may be described as 'asking the wrong question' or 'applying the wrong test'. o Thus, it appears that the Courts could be more intrusive in considering errors within the jurisdiction of the particular administrative body, rather than there merely being an exclusion of a judicial role once properly within the scope of decision making.
 Elliot: '[this] laid the foundation for such a step [abolition of jurisdiction distinction] to be taken]'.
 As such, Lord Reid's non-exhaustive lists of reasons for the court to conclude nullity undermined the jurisdictional/non-jurisdictional distinction. Ouster Clauses: Ouster clauses were important in this case since, as seen earlier, the relevant Act excluded Courts calling into question any determination by the Commission.
 As such, it was claimed that there was no 'determination' at all, it was instead a mere nullity - an action with no legal effect. Lord Reid followed this in saying that the word 'determination' in the statute does not include everything which purports to be a determination, but which is in fact no determination at all.
 As such, it read in a jurisdictional requirement to the Act, that decisions are 'determinations' when they have legal effect (when they are within jurisdiction).

Endicott: there is much value in finding that a 'determination' of a body may not be a 'determination', bit it remains unclear how far this can be taken.

It is clear that the Courts will be very reluctant to giver effect to an ouster clause.
 Such issues go to the root of the institutional competence contention - where legislation has specifically excluded the intervention of the Court, for them to the do so is particularly intrusive. o At the same time, it is not satisfactory for Parliament to merely block the jurisdiction of the Court.
 Circularity - it is the job of the courts, constitutionally, to decide matters of law and interpret statues. Denying this makes such a clause practically unenforceable.
 South East Asia Fire shows that these clauses are potentially effective. o However, the reasoning in this case relied on the basis of certain errors of law being non-jurisdiction, a view now undermined by Page). It seems that the best way to oust the effect of the court's jurisdiction is to strike out the availability of remedies. This leave the legally investigative nature of the courts functions intact, but takes away its teeth. There is a particular difficulty with ouster clauses in the human rights context.
 It should be noted that the cases seeking to restrict the court's jurisdiction are pre-HRA.
   The preclusion of review may interfere with Article 6 ECHR, requiring that an independent tribunal must make a decision. o This will be relevant where the initial decision-maker does not qualify as independent under the Strasbourg jurisprudence. o Nevertheless, it is clear that the Courts are willing to interpret broadly to prevent a constitutional clash Expansion of the error of law following Anisminic: Re Racal Communications considered Anisminic as having abolished the collateral fact doctrine.
 Diplock: 'the break-through made by Anisminic was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished.' o As such, appeared that all errors of law, operative or not, could ground a quashing order for the decision of the tribunal/body.
 Similarly in O'Reilly v Mackman, Diplock claimed that: '[Anisminic] has liberated English public law from the fetters that the courts had therefore imposed upon themselves… [which consisted in] drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction and error off law committed by them within their jurisdiction.' o However, Lord Reid did still held a distinction between: (i) mistakes of law that make a decision a nullity, and (ii) mistakes of law which do not make a decision a nullity. o The problem was that he offered no guidance as to distinguishing between the two errors, leading to an interpretation that a determination is null and void if it involves any misconstruction/irrelevant consideration as to the basis of the decision. Re Racal led to a distinction between different types of bodies, giving an institutional approach as to who could competently decide questions of law and questions of fact:

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