November 20

Joe Tomlinson: Privacy International Symposium – Ouster Clauses, Material Exclusions on Judicial Review, and the Role of Policy Justifications

Privacy International has brought judicial review proceedings against the Investigatory Powers Tribunal, in respect of the Tribunal’s treatment of a complaint about computer hacking by GCHQ. At first instance ([2017] EWHC 114 (Admin)) and on appeal ([2017] EWCA Civ 1868), it has been held that judicial review of the Tribunal is precluded by the ouster clause contained in s. 67(8) of the Regulation of Investigatory Powers Act 2000. A seven-judge bench of the Supreme Court (Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Sumption, Lord Carnwath and Lord Lloyd-Jones) will hear Privacy International’s appeal in December.

This online collection grows out of a symposium held by the Centre for Public Law at the University of Cambridge on October 20, 2018, organised by Dr Paul Daly (University of Cambridge). Symposium participants have agreed to post short contributions on this important litigation.

The ongoing Privacy International litigation has brought back to the surface a classic question of modern public law: the legal status of ouster clauses (i.e. statutory provisions which seek to exclude judicial review of certain government decisions). I have written previously on the case and, in particular, the need for scholars addressing the issues around ouster clauses to appreciate the government’s perspective in order to provide a rounded analysis. In this post, I develop that analysis by making two points. First, that there is a need to situate discussion about ouster clauses in a wider account of, what I will refer to as, material exclusion from judicial review. Second, the importance of understanding the justifications for the enactment of ouster clauses as part of this enterprise. I conclude by offering some initial suggestions on how locating ouster clauses in this wider account of material exclusions may provide new perspectives on the legal principles relating to ouster clauses.

Legal and material exclusions on judicial review

The academic debate on ouster clauses primarily examines such provisions as, what may loosely be called, a matter of legal from. In the contemporary public law scholarship, where analysing public law by relating it to differing understandings of liberal constitutional principle is prevalent, the dispute around ouster clauses is usually portrayed as a complex clash between differing conceptions of the nature, status, and relationship of the constitutional principles of the Rule of Law and Parliamentary sovereignty (e.g. see Mark Elliott’s recent analysis). We can, broadly, label this the legalist framing of the ouster clauses debate. The legalist label is not meant pejoratively, but is rather just to say this debate is premised on formal legal exclusions of judicial review—that is, exclusion enacted in law—and how various normative views on the optimum constitutional order relate to those formal legal exclusions.

The legalist framing of ouster clauses creates a debate with narrow parameters that can lead to a sense of artificiality. For a start, lawyers may be betraying the reality of their own subject in adopting this frame: the legalist analysis often seems detached from the assessment of ouster clauses in legal, political, and bureaucratic practice, where practical considerations and policy context are often more relevant than notions of overarching constitutional principle. More importantly, as there can be no objective claims to a ‘true’ public law order, the debate often can be seen as the offering up of various arguments for different constitutional visions which can never be proven to be correct. The products of a debate framed in such terms—though they may be enlightening in various ways—can only take us so far for the simple reason that it a debate preoccupied with law. As J.A.G. Griffith and Harry Street warned us in their seminal 1963 text Principles of Administrative Law (one of the first addressing the subject), any analysis based on a limited ‘view of law or politics or public administration is obtained if any one of these social sciences is surveyed to the exclusion of the others. It is not so much that the study of one is incomplete without reference to the others, but rather that the landscape is single and entire. There are not different views to be seen, but only different viewers with variously adjusted blinkers.’

Another way of considering ouster clauses, that may take us beyond the legalist debate, is locating them within an account of material exclusion of judicial review. With this approach, the starting point is to ask who is excluded from judicial review and why, rather than which laws formally restrict access to judicial review. Any public law practitioner would tell you that access to judicial review has always been blocked in a variety of ways, and only very few of those exclusions have anything to do with ouster clauses. Tom Hickman, for instance, explained in a recent blog how ‘public law’s disgrace’ is not legal doctrine but that it appears to be the case that ordinary people cannot afford to bring a judicial review: ‘judicial review provides a Rolls Royce form of litigating disputes with public bodies. The problem with judicial review is that most people cannot afford a Rolls Royce.’ Such complaints of barriers to judicial review are not new or uncommon. In a passage in his 1968 classic Justice in the Welfare State, Harry Street bemoaned the ‘inadequacies of judicial review.’ He observed that the obvious solution to any administrative illegality in welfare decision-making not detected by a tribunal is judicial review: ‘[s]imple, yes, but we just don’t have it.’ Instead, Street argued the judicial review system was an ‘inefficient and jumbled mass of rules.’ He lists a range of ills—including its prohibitive expense and the complexity of the process—which made judicial review almost an irrelevance to the pursuit of justice in the welfare state of 1968. Public lawyers have not yet produced a sophisticated overall account of material exclusion from judicial review, yet the prevalence of such exclusions have long been accepted.

Locating ouster clauses within the broader context of material exclusion from judicial review, as opposed to understanding them in isolation as a matter of legal form, illuminates the particular type of exclusion manifest in such devices. First, they are laws, usually found in primary legislation. As such, ouster clauses can claim to have a direct link to some form of democratic approval and, by virtue of the Parliamentary process, they usually have a justification or justifications that are a matter of public record. Further, exclusion of judicial review through ouster clauses is explicit rather than, for instance, as incidental result of a combination of circumstances, policy, law etc. All of this may seem obvious but many exclusions on judicial review do not have such features (a good recent example is the judicial review, settled before the hearing by the Legal Aid Agency, about how legal aid back payments acted as a form of exclusion on judicial review). Exclusions are commonly the result of policies, soft law, administrative behaviour, economic circumstance, lack of access to legal advice etc. In such circumstances, justifications may not be quite so apparent or and they may not even existed. Indeed, the exclusion itself may not be immediately apparent without searching for it. Some limits to the suggestions that justifications are ascertainable for ouster clauses must, however, be highlighted. For instance, there are problems with any suggestion that a corporate body like Parliament can articulate a clear justification or clear justifications. There may also be a need to distinguish between a government’s justification and Parliament’s justification for enacting an ouster clause. In the UK Constitution, the two may be very blurred indeed but there may also be, on occasion, a meaningful difference that we need to be wary of.

Analysing ouster clauses as part of a wider account of material exclusion from judicial review also brings to the fore two important observations that do not get properly recognised in scholarship on this topic. First, ouster clauses are a relatively esoteric variety of restriction on judicial review. Second, any jurisdiction can only ever handle a certain amount of judicial review litigation. Judicial review is an expensive, legalistic form of dispute resolution. Exclusions of judicial review will always be present. As it cannot realistic to rally against every and all exclusion on judicial review, the tasks of the public law scholar in respect of ouster clauses must be to provide an account of exclusions as they exist and, if they so choose, make normative claims about which are legitimate and which are not, as well as which are lawful and which are not.

Justifications for ouster clauses

This brings me to the question of why we should care about justifications for ouster clauses. The answer, I suggest, is simple: given the practical inevitability of exclusions on judicial review, justifications for ouster clauses will form some part—and potentially an important part—of both describing and analysing exclusions. To be clear, justifications are far from the whole picture. For instance, there is also a need to understand the practical effects of any clauses.

What, then, are the justifications that have been offered for ouster clauses? The first observation that ought to be made in this respect is that the term ‘ouster clause’ is itself ambiguous and it could be said there are a wide range of ouster clauses. In a recent analysis in Judicial Review, a basic taxonomy was offered (see table 1). At a general level, it can be observed that justification often relates to the type of clauses in question, or a justification can at least be inferred from the face of the clause. For instance, time limitation clauses have a familiar set of justifications, e.g. procedural management of caseloads, to ensure government can plan its work without an indefinite threat of litigation etc.

 

Table 1: Basic Taxonomy of Ouster Clauses

Finality

clause

No remedies clause Conclusive evidence clause Time limitation

clause

Statutory language stating decisions to be “final,” or “not be questioned” No remedy is available against certain decisions Where certain decision-makers can certify decisions as “conclusive evidence” that a statutory requirement has been met Where a claim is ousted for not being brought within a certain timeframe

 

At a more specific level, justifications for ouster clauses vary depending on the context. It is often presumed, to borrow Andrew Le Sueur’s words, they are an attempt to avoid the ‘irritant of judicial review.’ This may, at times, be an important operating justification; one function of judicial review is to ensure that ‘public bodies give appropriate priority to principles of legality over competing policy goals (such as speedy decision-making and economy with resources).’ This justification is perhaps best demonstrated by New Labour’s immigration ouster clause debacle. Immigration matters have long constituted the majority of judicial reviews and have been seen by some as a major problem in the pursuit the efficient administration of justice. The Home Office which proposed the ouster clause—which would have become section 108A of the Nationality, Immigration and Asylum Act 2002 if enacted—was particularly explicit about the inconvenience of judicial review to immigration administration being the key justification for the proposal. For instance, speaking in July 2002, Lord Bassam of Brighton—a then junior minister in the Home Office—said:

Last minute and abusive applications for judicial review have a debilitating effect on the process of asylum applications as they prevent the swift removal from this country of those who have no basis to remain here. Under current arrangements between the [Home Office] and the High Court, if a judicial review is threatened, removal is delayed for between three to five days to enable the application to be lodged. If an application is lodged, the removal will be deferred. At present, it takes seven to eight weeks for the permission application to be considered.

Elsewhere, it was claimed—in particular David Lammy MP—that ‘people are frequently looping back and playing the system.’ This proposed ouster, due to extensive criticism, was never enacted.

The inconvenience of judicial review is, however, not the only justification for ouster clauses. As explained above, many other justifications may exist too. For instance, conclusive evidence clauses may be a way of ensuring manageability in factually complex areas. What is required is a closer engagement with the reasons for ouster clauses. Not only can this bring public law analysis closer to reality of its subject, they can play an important part of understanding how ouster clauses fits in the wider picture of material exclusion from judicial review.

Back to the law

I have made two key points in this post. First, that there is a need to situate discussion about ouster clauses in a wider account of material exclusion from judicial review. Second, there is a need to engage with the justifications for the enactment of ouster clauses as part of that enterprise. These points ultimately relate to the shape of scholarly inquiry concerning ouster clauses. However, it is important to return to the legal question. After all, the job for the court in the Privacy International case is to assess the legality of these clauses. My (admittedly limited) contribution to that question here is that thinking about ouster clauses in a wider context of material exclusions suggests at least two further points that are not properly developed in the thought on ouster clauses. From one point of view, courts have attended primarily to formal legal exclusions of judicial review more carefully than to other forms, perhaps making their efforts to combat exclusion from judicial review in the ouster clauses case law somewhat arbitrary in effect. From another perspective, perhaps the underlying legal principle which does exist on ouster clauses has been radically underexplored by legal practitioners and under-applied by the courts in respect of other types of material exclusion on judicial review.


Dr Joe Tomlinson is a Lecturer in Public Law at King’s College London and Research Director of the Public Law Project. All views expressed here are his personal views.