The term “ouster” is generally used in English law to mean the wrongful dispossession of someone's right to property. In judicial review however, an 'ouster clause' has a separate meaning: limiting access to judicial review of the decisions of public bodies.
What is an Ouster Clause?
In English public law, judicial review allows an interested party the right to have the legality of a decision by a public body, or a private body exercising public functions, reviewed by the Administrative Court; a division of the High Court.
An ouster clause is a provision in a Parliamentary statute which excludes certain actions and decisions from judicial review; in the interests of the smooth administration of justice. The right to judicial review is a significant part of the UK constitution, so the courts take a narrow view of such clauses.
Why are Ouster Clauses Necessary?
The interests of smooth administration are significantly hampered if the decision-making process can be drawn out over months or years by appeals and applications for judicial review. The review process, although often faster than the standard courts and appeals processes, is nevertheless a long one. Delays will often therefore cost the public body, and therefore the taxpayer as a whole, thousands or even millions of pounds. It is therefore in the public interest to limit applications for review of decisions to a short period after the decision has been announced, or to bar review entirely in some circumstances.
When is an Ouster Clause Valid?
In Anisminic Ltd v. Foreign Compensation Commission [1969], the House of Lords determined that ouster clauses in and of themselves are not illegal, and will be effective in protecting from judicial review any decisions which are not “a nullity”. The effect of this ruling has been to prevent frivolous and malicious applications for review, amongst other practices.
However, some ouster clauses do not operate as a blanket ban on applications for review; instead providing that applications can only be made within a certain time from the original decision being announced. These “time limit ousters” were ruled to be legal in R v. Secretary of State for the Environment, ex parte Ostler [1972] on the grounds that it is in the public interest to “encourage timely reviews”.
When is an Ouster Clause Invalid?
The ruling in Anisminic has cut a large swathe through the validity of ouster clauses. In general, the courts take a narrow view of ouster clauses on the grounds that Parliament should be presumed to have not intended to deny the public its right to judicial review.
Following Anisminic, there has been some debate about what constitutes “a nullity” under the terms of the ruling. This question was answered in Re Racal Communications [1981], where the court ruled that “any error of law” would take a tribunal “outside of its jurisdiction”.
In Council of Civil Service Unions v. Minister For the Civil Service [1985], three grounds for judicial review were identified. A decision is open to judicial review if it is irrational, illegal, or based on a procedural impropriety. Following Racal Communications and Council for Civil Service Unions, it is clear that decisions which take a public body outside of its jurisdiction will be illegal and therefore a “nullity” under Anisminic.
Thus in the interests of good justice, any ouster clause can be invalidated by an illegal decision-making process, or a nullified decision by a public body. The decision in Council of Civil Service Unions has reduced the effectiveness of ouster clauses in legislation by determining that any grounds for judicial review will render the clause invalid and leave the decision open to review. This does not render ouster clauses wholly without effect, however; as they still work to protect the interests of good administration of justice by limiting the number of frivolous and ineffective appeals.
Zoe Kirk-Robinson - Zoë Kirk-Robinson is a freelance writer/artist specialising in legal writing, internet technology and creative writing. She holds a ...
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