The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.

Why is it difficult to oust judicial review?

The rule of law demands that the courts retain a supervisory jurisdiction over the exercise of public power in the form of judicial review. This is in order to guard us all against abuses of power and to ensure that executive action is lawful. It is also a manifestation of the key constitutional principles of the separation of powers and access to justice.

To protect their supervisory role, the judiciary interpret and mediate legislative provisions that might tend towards excluding their involvement in a way that leaves judges’ ability to review the lawfulness of government action intact. In doing so, the courts rely heavily on a presumption that Parliament does not intend to pass laws that would undermine fundamental rights. Legislation purporting to exclude judicial review (sometimes called ouster clauses) is subjected to very strict scrutiny and judges only give full effect to it if Parliament has used the firmest, clearest and most explicit language to demonstrate that clamping down on judicial review really is intended. If the legislation is at all ambiguous or less than explicit, it will be construed very narrowly and restrictively, so as to preserve the availability of judicial review. As the Independent Review of Administrative Law (IRAL) panel concluded in its 2021 report: “Statutory (or regulatory) abrogation of judicial review can only be excluded by the most clear and explicit words in statute and will not be implied” (IRAL report 1.43).

There is undoubtedly a legal fiction in the courts’ interpretive presumption against the exclusion of judicial review. Sometimes it is pretty obvious that the government has deliberately, and in good faith, passed legislation through Parliament with the intention of clipping the judges’ wings (one example might be R (Cart) v Upper Tribunal [2012] 1 AC 663). If they defeat such efforts by applying an extremely narrow interpretation of the extent to which judicial review can be precluded, the judges may be accused of contravening a purist understanding of Parliamentary Sovereignty, whereby Parliament is free to do (or undo) whatever it wishes. On a more nuanced view, however, the need for government action to be subject to proper legal control is recognised as desirable and, indeed, a vital safeguard for democracy rather than a challenge to it.

Yes, Parliament itself provides the principal defence for the rule of law, separation of powers and access to justice. The rubric of British politics is one of mutual respect for institutional competence, comity and self-restraint so “there should be highly cogent reasons for taking such an exceptional course” as to exclude a public function from the scope of judicial review (IRAL report 2.89). But the robust interpretive stance of the courts in determining the limits of their own jurisdiction is an appropriate constraint, and one identified in R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491 as dating back at least to the seventeenth century.

We might take it as a healthy sign of constitutional checks and balances at work that judicial review seems to be unpopular with all political parties whenever they are in power. This is especially so given the very close identification between the executive and Parliament in the UK political system, where it is normal for the party in government to hold a majority of seats in the House of Commons, and therefore to have the ability to pass its legislative agenda through Parliament relatively unimpeded.

So is judicial review unlimited?

Judicial review may be limited in other, softer, ways. Many rules exist to keep it contained and the courts tend to be much readier to recognise them. Two good examples are the standard time limits in Civil Procedure Rule 54.5(1), under which claims must typically be brought “(a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose”, and the significant court fees and legal costs involved. It is also perfectly normal for judicial review to make way for an adequate alternative remedy to be pursued first, for example if a particular decision is required to be challenged through a specific tailored procedure. Admittedly, not all such limits on judicial review are equally effective. For example, the courts are reluctant to accept so called ‘evidential ouster’ clauses instructing them not to inquire into particular matters relevant to a decision being challenged. They also tend to be generous in applying the “sufficient interest” test for who has standing to bring a claim for judicial review.

Just because an effective ouster clause excluding judicial review is hard to devise, moreover, does not make it impossible. The IRAL panel emphasised the willingness of eight judges across the Divisional Court, Court of Appeal and Supreme Court to uphold the ouster clause in Privacy International, even though that clause was ultimately defeated in the Supreme Court (IRAL report 1.39). Successful drafting may depend very much on the rationale for the measure in a specific context and how constitutionally objectionable the consequences of denying access to judicial review in that context would be. Ouster clauses are sometimes upheld, particularly if carefully tailored to the circumstances and used in contexts where the decision maker being protected from judicial review is itself an independent judicial body (one example is R (G) v Immigration Appeal Tribunal [2005] All ER 165).

It would be radical to suggest that the judges ought never to give effect to ouster clauses. The only context in which that has been seriously suggested by senior judges, R (Jackson) v Attorney General [2006] 1 AC 262, envisaged a constitutional doomsday scenario in which judicial review was being abolished entirely.

Are ouster clauses making a comeback?

Clause 2 of the recently published Judicial Review and Courts Bill (here) may provide a new template for an effective ouster clause. The Ministry of Justice apparently hopes so, arguing that this will “serve as a framework that can be replicated in other legislation… [and] draw a line under decades of uncertainty and confusion as to their proper use” (here). However Clause 2 is a restricted ouster which only removes the High Court’s jurisdiction to review the Upper Tribunal’s decisions on applications for permission to appeal against certain decisions of the First-Tier Tribunal. It does not ’immunise’ executive decision making from challenge – both the Upper Tribunal and First Tier Tribunal are independent judicial bodies. That context for this particular ouster clause may support it being upheld. Whether the same drafting technique would be as effective in other contexts may be another matter. In any event, a recent speech by Lord Chancellor Robert Buckland QC (here) suggests that there is an appetite to breathe new life into wide-ranging ouster clauses and that, whatever the efficacy of Clause 2, we should expect continued legislative experimentation in this area.