Ouster clause
An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function. According to the doctrine of the separation of powers, one of the important functions of the judiciary is to keep the executive in check by ensuring that its acts comply with the law, including, where applicable, the constitution. Ouster clauses prevent courts from carrying out this function, but may be justified on the ground that they preserve the powers of the executive and promote the finality of its acts and decisions.
Ouster clauses may be divided into two species – total ouster clauses and partial ouster clauses. In the United Kingdom, the effectiveness of total ouster clauses is fairly limited. In the case of Anisminic Ltd. v. Foreign Compensation Committee, the House of Lords held that ouster clauses cannot prevent the courts from examining an executive decision that, due to an error of law, is a nullity. Subsequent cases held that Anisminic had abolished the distinction between jurisdictional and non-jurisdictional errors of law. Thus, although prior to Anisminic an ouster clause was effective in preventing judicial review where only a non-jurisdictional error of law was involved, following that case ouster clauses do not prevent courts from dealing with both jurisdictional and non-jurisdictional errors of law, except in a number of limited situations.
The High Court of Australia has held that the Constitution of Australia restricts the ability of legislatures to insulate administrative tribunals from judicial review using privative clauses.
Similarly, in India ouster clauses are almost always ineffective because judicial review is regarded as part of the basic structure of the constitution that cannot be excluded.
The position in Singapore is unclear. Two cases decided after Anisminic have maintained the distinction between jurisdictional and non-jurisdictional errors of law, and it is not yet known whether the courts will eventually adopt the legal position in the United Kingdom. The Chief Justice of Singapore, Chan Sek Keong, suggested in a 2010 lecture that ouster clauses may be inconsistent with Article 93 of the constitution, which vests judicial power in the courts, and may thus be void. However, he emphasized that he was not expressing a concluded view on the matter.
In contrast with total ouster clauses, courts in the United Kingdom have affirmed the validity of partial ouster clauses that specify a time period after which aggrieved persons can no longer apply to the courts for a remedy.
Background
According to the Diceyan model of separation of powers, the executive of a state governs according to a framework of general rules in society established by the legislature, and the judiciary ensures that the executive acts within the confines of these rules through judicial review. In general, under both constitutional and administrative law, the courts possess supervisory jurisdiction over the exercise of executive power. When carrying out judicial review of administrative action, the court scrutinizes the legality and not the substantive merits of an act or decision made by a public authority under the three broad headings of illegality, irrationality and procedural impropriety. In jurisdictions which have a written constitution, the courts also assess the constitutionality of legislation, executive actions and governmental policy. Therefore, part of the role of the judiciary is to ensure that public authorities act lawfully and to serve as a check and balance on the government's power. However, the legislature may attempt to exclude the jurisdiction of the courts by the inclusion of ouster clauses in the statutes empowering public authorities to act and make decisions. These ouster clauses may be total or partial.The following are some examples of ouster clauses:
If an ouster clause achieves its desired effect in preventing the courts from exercising judicial review, it will serve as a clear signal to the decision-maker that it may operate without fear of intervention by the courts at a later stage. However, ouster clauses have traditionally been viewed with suspicion by the courts. According to the 19th-century laissez-faire theory championed by A. V. Dicey, which Carol Harlow and Richard Rawlings termed as the "red-light approach" in their 1984 book Law and Administration, there should be a deep-rooted suspicion of governmental power and a desire to minimize the encroachment of the state on the rights of the individuals. Therefore, the executive, which is envisaged as capable of arbitrary encroachment on the rights of individual citizens, is subjected to political control by Parliament and to legal control by the courts.
On the other end of the spectrum, there is the green-light approach derived from the utilitarian school of thought associated with legal philosophers such as Jeremy Bentham and John Stuart Mill. The green-light approach regards state involvement as an effective means to facilitate the delivery of communitarian goals. Hence, ouster clauses are regarded as useful devices to keep a conservatively inclined judiciary at bay. One such communitarian goal achieved by ouster clauses is that it results in consistency and finality in the implementation of policy considerations by encouraging specialist bodies to act as adjudicators in certain areas of administration.
Total ouster clauses
In the United Kingdom
Total ouster clauses, also known as finality clauses, seek to completely exclude the supervisory jurisdiction of the courts. In the United Kingdom, before the seminal decision of Anisminic Ltd v Foreign Compensation Commission, the law drew a distinction between situations where the public body was acting within the powers conferred on it by law but committed an error of law, and situations where the commission of the error of law meant that the public body did not in fact have power to act. In the former situation, a total ouster clause precluded the courts from exercising their supervisory function and issuing any prerogative orders to quash the erroneous action. The courts could only step in if the error of law affected the jurisdiction of the public body to act, for example, if the public body erroneously interpreted the scope of the powers conferred upon it, and thus made a decision which it had no power to make.In R v Medical Appeal Tribunal, ex parte Gilmore, the legality of the total ouster clause in section 36 of the National Insurance Act 1946 was doubted by the Court of Appeal of England and Wales, which issued a certiorari against the Medical Appeal Tribunal for an error of law on the face of the record. Lord Justice of Appeal Alfred Denning stated that the words "any decision of a claim or question ... shall be final" only excluded an appeal but not judicial review:
In Anisminic, the House of Lords effectively held that any error of law made by a public body will render its decision a nullity, and an ouster clause does not oust the courts' jurisdiction in judicial review unless it clearly states so. The Foreign Compensation Commission had misinterpreted certain subsidiary legislation, with the effect that almost all claims for foreign compensation would be defeated. Their Lordships held that this misconstruction of the legislation rendered the decision ultra vires, and since Parliament could not have intended for the ouster clause to protect an ultra vires determination, judicial review was not precluded. Though Anisminic did not expressly abolish the distinction between jurisdictional and non-jurisdictional errors of law, in R v Lord President of the Privy Council, ex parte Page the House of Lords noted that:
Thus, in English law all errors of law are now to be considered as jurisdictional and ultra vires in a broad sense of the term. This implies that ouster clauses should not be effective against any error of law. The Anisminic principle was upheld by the Supreme Court in both R v Upper Tribunal and R v Investigatory Powers Tribunal and others so that the rule of law is promoted, among other reasons. Since it is practically immaterial to the victim of an error of law whether it is a jurisdictional error or otherwise, it would be manifestly unjust if judicial review was precluded when a non-jurisdictional error was egregious and obvious, but allowed for a small jurisdictional error.