Ouster clauses are clauses in legislation that seek to oust or limit the ability of the courts to review administrative decisions. They present a long-standing challenge that tests the balance between Parliamentary sovereignty and the application of the rule of law through the courts' supervisory jurisdiction. The Courts, all the way back to Anisminic v Foreign Compensation Commission [1969] 2 AC 147, have looked to apply relatively rigid rules to justify its position based on upholding statutory intention against a backdrop of the common law protections. The Supreme Court has recently handed down a milestone judgment that, whilst still maintaining the existing legal principles, permits the judiciary a degree of flexibility in determining whether it has power to review administrative decisions.
Background
The Investigatory Panels Tribunal (IPT) is a tribunal empowered under the Regulation of Investigative Powers Act 2000 (RIPA) with jurisdiction to, amongst other things, examine the conduct of the intelligence services. The main purpose of RIPA is to ensure that investigatory powers are deployed in accordance with the human rights of affected persons. The IPT is the only domestic forum for human rights claims against intelligence services.
The Government Communications Headquarters (GCHQ) is a cyber and security agency tasked with assisting to ensure the United Kingdom's national security. Non-governmental organisation Privacy International and seven Internet Service Providers (ISPs) commenced an action claiming that GCHQ's use of 'Computer Network Exploitation' (CNE) techniques was unlawful. CNE refers to the accessing of computer systems and retrieving data from them without consent. Section 5 of RIPA empowers the Secretary of State for Foreign and Commonwealth Affairs to issue a warrant over any property to help the intelligence services carry out their functions, including that taken via CNE. In Privacy International v SSFCA [2016] UKIP Trib 14_85-CH, the IPT dismissed the claim that the CNE conducted by GCHQ was unlawful. It held that the s 5 warrant was enough to render the CNE lawful in the context of RIPA.
The Ouster Clause
Privacy Internal sought judicial review of the IPT's decision. However, s 67(8) of RIPA embodies an ouster clause designed to ensure that complaints are dealt with in a way that does not prejudice national security. Section 67(8) states:
- Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.
Both the High Court and the Court of Appeal held they were precluded by s 67(8) from reviewing the case as that was deemed to have been Parliament's intention.
The Supreme Court's Judgment
A 4:3 majority of the Supreme Court allowed the appeal, holding that Privacy International were not precluded from bringing judicial review. The majority noted that recent authority since Anisminic has affirmed a position of the strong presumption against the exclusion of judicial review by way of ouster clauses, other than by "the most clear and explicit words". The upshot has generally been that any error of law is deemed to have rendered the decision under scrutiny null (i.e. a decision the decision maker never had power to make). The null decision is consequently outside of the scope of the ouster clause, and not prevented from being amenable to judicial review insofar as there exists an error of law.
The material difference between s 67(8) of RIPA and the ouster clause in Anisminic is the addition of the words "including decisions as to whether they have jurisdictions". The majority held that the additional words meant the ouster clause was specifically in relation to questions going to the IPT's jurisdiction. The inserted words did not prevent judicial review in this case since the review was in relation to the section 5 warrant, which "on no ordinary view" could be a question of jurisdiction. The result was the same ineffectiveness of the ouster clause in Anisminic.
The majority continued to discuss whether Parliament is able to oust the supervisory jurisdiction of the High Court to quash decisions of an inferior tribunal. It is untrue that Parliament cannot ever oust judicial review of errors of law, as has been extracted from Anisminic. Rather, there is a necessity to balance the intention of Parliament (and with it the principle of parliamentary sovereignty) with the rule of law. The primary variable in that balance is the level of scrutiny required by the rule of law, which varies depending on the particular statutory context, to be determined by the courts.
The Supreme Court's judgment leaves inevitable uncertainty for both Parliament and claimants as to whether an ouster clause will likely prove effective. Further that it was determined by a slim majority leaves this area of law open to further development and elucidation. Claimants considering commencing a judicial review action should not be disheartened by any relevant ouster clauses since the Courts have continued its reluctance to allow ouster clauses to prevent judicial review.