Introduction
The Government has been promising to change the system of judicial review for a considerable amount of time.1 In July 2021, it introduced the Judicial Review and Courts Bill2 which, at the time of writing, is going through the Second Reading in the House of Commons. Although very delicate and sensitive language was used in Consultation Papers and the draft of the Bill,3 the proposed reforms present an imminent danger to the judicial protection of constitutional rights and consequently, to the constitutional balance of power.
Despite criticism, the Government rejected concerns that the Bill was incompatible with the rule of law.4 First of all, the rule of law is a highly contested concept5 and the absence of a uniform definition enables the damaging provisions in the legislation to go unnoticed. For clarity, the rule of law in this piece refers to the common law principles on which judicial review stands. The umbrella term of the rule of law in this article substantively implies the restraint on government power, equality under law and the trust placed in the judiciary as a guardian of the principles of the common law constitution.6 All these three components are identified in the analysis.
This article explores the Bill’s long-term implications for judicial review, procedural administrative law and the rule of law in general. It argues that while the Government justified its proposed judicial review reform on the basis of public policy, namely efficiency and better administration, it largely neglected doctrinal concerns like upholding fundamental common law principles. The impact of this reform is much more damaging to the rule of law, in particular to the effective exercise of judicial control on the executive branch, than the Government is prepared to recognise. The reform greatly increases the Government’s power as it allows several administrative decisions to remain unchecked by the High Court. Hence, certain transfers of power also indicate that the reform will affect the British constitution in terms of its institutional structure. The highly technical language used in the Consultation Papers also acts as a great disguise which hides important rule of law concerns in the wrapping paper of monotonous procedural changes.
This piece focuses on Part I of the Bill and analyses the significance and the implications of the Bill’s provisions on judicial review in terms of quashing orders, the reversal of Cart litigation and the announced reform of ouster clauses.
Judicial Review Reform Analysis
1. Quashing Orders
In Part 1, Section 1 of the Judicial Review and Courts Bill, the Government proposed to introduce suspended quashing orders as a semi-new type of judicial review remedy.7 Provision 1(1) states that:
˝a quashing order may include provision (a) for the quashing not to take effect until a date specified in the order, or (b) removing or limiting any retrospective effect of the quashing˝.8
The provision signifies that if a decision challenged in a judicial review was found to be made or in breach of natural justice, the Court would grant a quashing order with a suspending effect. This effect would give a decision-maker ˝time to make transitional arrangements to deal with the effects of the impending quashing”.9 According to the Government, this provision would enable a decision-maker to change their initial decision that was rendered void by the Court. That would improve administration by reducing the ˝need for large regulatory regimes to be hastily re-created in light of a quashing order”.10 There is certainly merit to this flexibility argument. Modifying a decision in compliance with procedural fairness and within the remit of the power of the decision-maker is important as it sets a precedent for exercising that power when making like decisions in the future, thus decreasing the risk of acting ultra vires. The new procedure would increase both administrative efficiency and fairness. In addition, a modified decision would most likely be beneficial to a claimant – instead of outright quashing, the decision would be corrected and made lawful.11
Nevertheless, suspended quashing orders present a major concern for the rule of law, namely the restraint on government power. The Government suggested in their Consultation Paper that, as part of the modification process for an erroneous decision, the Executive could propose a piece of primary legislation to Parliament, which would, post-enactment, render a decision clearly labelled by the court as unlawful, lawful.12 This could cause great damage to the state of the rule of law in Britain if implemented. Using Parliament to legislate something that was previously illegal solely because it fulfils the Executive’s wishes brings a constitutional democracy dangerously close to what Lord Hailsham described as an ˝elective dictatorship˝.13 While the Executive’s decisions are amenable to judicial review, parliamentary sovereignty prevents courts from reviewing and overturning any Act of Parliament; therefore Parliament, as a supreme legislator, cannot be controlled by the judiciary.14 However, in the Westminster model, the party with a parliamentary voting majority always forms the Executive, which consequently guarantees a considerable degree of Executive control over the House of Commons.15 The scenario where Parliament passes an Act in order to render the Executive’s decision lawful would radically change the optics of the balance of powers. It would unambiguously transfer legislative sovereignty to the Executive and would, contrary to the constitutional principle of parliamentary supremacy, effectively place Parliament in a subservient position to the Executive. Consequently, the Government would usurp the power of legislature and become both the supreme legislator and enforcer. While the argument does not suggest that the Executive would eventually abolish Parliament and exercise both functions in a dictatorial fashion officially, the optics of the Executive’s controlling of Parliament and using it to override the courts’ decisions so conspicuously is just as harmful to the state of the rule of law.
Of course, the degree of the illegitimate usurpation of power would depend on the substance of the proposal. If the Government proposed a Bill which would simply make a technical and uncontentious modification of delegation of power, it would not present any legal controversy.16 On the contrary, that kind of action would be expected from Parliament for the normal functioning of the State. On the other hand, the Government could potentially propose a Bill that would modify the principles of natural justice or the proportionality test, which are essential for efficient judicial review. While this is highly speculative, the Government has the power to modify such principles by introducing an Act of Parliament, which, as the highest legal authority, always overrides the common law.17 In light of the dangerous potential effects of such legislation, the prospect of this kind of constitutional modification is too serious to be dismissed as an impossibility.
Under the guise of the efficiency argument and technical language, the Government is in the business of restructuring the constitutional system. The limited system of checks and balances on the Executive could potentially transform the rule of law into a clear rule of the Executive, with the Executive at the top and Parliament as its authorising agency.18
2. The Reversal of Cart
The Bill also contains other constitutionally significant reforms – the reversal of Cart litigation and the exclusion of the High Court’s supervisory jurisdiction over the Tribunal system.
Section 2(1)(2), with regard to the Upper Tribunal’s permission-to-appeal decision, states that this ˝decision is final, and not liable to be questioned or set aside in any other court˝.19
The Supreme Court’s decision in Cart20 serves as an important authority for the protection of constitutional rights in the fields of immigration and asylum, social security and child support, which were administered by the First-tier Tribunal.21 The Tribunals, Courts and Enforcement Act 2007 delegated appellate and supervisory jurisdiction over the First-tier Tribunal to the Upper Tribunal, which consequently became the ˝superior court of record˝.22 The question that arose in Cart was whether the refusal of permission to appeal by the Upper Tribunal, as a body with supervisory jurisdiction, could always be judicially reviewed or only in exceptional circumstances.23 The holding in Cart recognised that tribunals function within a separate framework and have jurisdiction over a determined area of cases that should not be interfered with by the High Court.24 However, it also established the following rules for cases where a First-tier Tribunal decision contained an error of law: if the Upper Tribunal denied permission to appeal the First-tier Tribunal’s decision on an important point of principle or practice, or where some other compelling reason existed to hear the appeal, the Tribunal’s decision would be amenable to the supervisory jurisdiction of the High Court.25
Once again, the Government based the decision for reversal on the efficiency argument.26 According to the report in the Consultation Paper, Cart-based judicial review cases have the lowest success rate of all judicial reviews – in the first data analysis the rate was around 0.22% and after re-evaluation 3%.27 The Government argued that resources were being disproportionately allocated to the Cart mechanism, compared to its effectiveness.28
Prior to the analysis of rights protection, the accuracy and applicability of data provided in the Consultation Paper should be discussed. As claimed by Tomlinson and Pickup, the method selected by the IRAL Panel is questionable but guarantees results that would fit neatly into the Government’s narrative of the Cart mechanism’s ineffectiveness.29 There were 5502 applications for Cart judicial review with 12 cases officially producing positive results. Solely utilising this data, the Panel found that only 0.22% of all applications were successful.30 Nevertheless, official reports or transcripts were accessible in only 45 (out of 5502) cases. Tomlinson and Pickup thus proposed that, for an accurate picture, the percentage should be obtained by using the number of positive results from cases with recorded results, since we cannot simply deduce that all the 5457 cases without official reports resulted in a negative outcome. This makes the approximate percentage of successful cases much higher – around 26.7%.31
Even more importantly than the success rate, the extinguishment of the Administrative Court’s supervisory jurisdiction, as established in Cart, will have damaging repercussions for the rule of law. Justice should not be denied to anyone – not even to a small proportion of claimants who succeed in their claims using the Cart mechanism. While the allocation of judicial resources must be carefully organised to ensure that each division and mechanism receives sufficient funds, the strain on finances should not be the primary reason for abolishing the entire procedure. This is especially true because the Supreme Court itself emphasised that some kind of supervision over the Tribunal system must be maintained.32 Interestingly, the Government based the discontinuation of Cart on arguments that were already rejected in the Cart judgment itself.33 Of course, an Act of Parliament overrides a judgment, but their contradictory substantive positions convey an alarming message.
To argue that there is an excessive influx of Cart challenges is to ignore the Supreme Court’s reasoning in Cart, where second-tier appeal criteria were introduced in permission-to-appeal cases with a view to restricting them.34 As opposed to the mere arguability test that must be satisfied in appeals from the First-tier Tribunal to the Upper Tribunal, second-tier appeals criteria only allow judicial review in cases which raise an important point of principle or practice, or where another compelling reason exists.35 The Court acknowledged that the availability of judicial review in tribunal cases must be limited to avoid a floodgate of challenges. For this reason, second-tier appeal criteria seemed sufficiently stringent to limit the cases.36 Indeed, in the decade after Cart, the courts’ use of the criteria in judicial review cases demonstrated the effectiveness of their filtering function.37 In both Essa38 and HS39, the courts recognised the merit of the criteria in filtering cases at the permission stage to guarantee a ˝proportionate limit on the availability of judicial review˝.40 Similar reasoning was also provided in Ground Rents41 and AA (Iran)42, which illustrates that courts certainly understand the need to proportionately limit judicial review of tribunal decisions and recognise the filtering role of the second-tier appeal criteria put forward in Cart. In this way, the low success rate proposed by the Government acts as proof that the criteria effectively reduced the number of challenges, as the majority of cases were rejected at the permission stage of review, thereby consuming fewer resources. However, the Government’s Consultation Paper did not mention the role and effects of the criteria and simply used the success rate (of questionable accuracy) and lack of resources arguments to strengthen their conclusion that Cart challenges must be discontinued.43 While the second-tier appeal criteria themselves were not abolished by the Bill, they lost all their relevance in Cart-style judicial review.
Having discovered that the effectiveness of the Cart mechanism is more complex than the Government initially presented, the legislative reversal of the Supreme Court’s holding is concerning. Firstly, Baroness Hale was correct to emphasise that since every judge is at a risk of making a mistake, there should be a chance for another judge to reconsider the decision.44 Although this premise could potentially be rebutted by the second part of her statement, namely that there should not be an infinite possibility for further appeals to decisions,45 the rebuttal is not applicable to Cart challenges as the Court ensured that an appellant would not take advantage of appeal opportunities by introducing stringent criteria at the permission stage. At the same time, important points of principle or practice would still be reviewed. This is particularly important in Cart challenges, most of them being immigration and asylum cases that usually involve issues of basic human rights.46 To disable all such challenges to a tribunal’s decision can have detrimental effects on English human rights jurisprudence and lead to possible direct violations of the European Convention on Human Rights or the Refugee Convention.47 For this reason, a number of non-governmental organisations that were surveyed proposed that an alternative mechanism capable of protecting individual’s rights should be established.48 Unsurprisingly, the Government, in accordance with their administrative efficiency spirit, decided not to pursue this plan as this would ˝shift the impact on resources to another part of the justice system˝.49 Little regard was given to the state of constitutional rights protection.
This leads us to the position of tribunals in the English judicial system. The High Court’s supervisory jurisdiction is, as contended by Baroness Hale, a common law artefact that protects the rule of law in the British constitution.50 While Parliament delegated some jurisdictional power to the Tribunal system, the Administrative Court’s task is to review decisions that possibly infringed an individual’s constitutional rights. It is pivotal that the High Court retains its supervisory power to review decisions of the Tribunal system that are affected by serious errors of law. Even though in Cart, the Government argued that the Upper Tribunal acts as a ˝superior court of record˝,51 this does not mean that the Tribunal’s decisions are unreviewable. The Court of Appeal in Cart rejected the idea that the Upper Tribunal was an alter ego of the High Court, which was reaffirmed by the Supreme Court.52 In addition, the Supreme Court’s ratio explained that the High Court’s power of judicial review could only be completely extinguished with clear and explicit language of an Act of Parliament,53 which was not the case in Cart but is certainly on the current Government’s agenda. With all tribunals’ permission-to-appeal decision challenges disabled, the Upper Tribunal is effectively placed side by side with the High Court and thereby its supervisory jurisdiction, directly derived from the common law, is extinguished. Even though the Tribunal system’s contribution to administrative effectiveness cannot be overlooked, its procedures cannot guarantee the same scope of protection as the High Court’s decision-making. Preventing judges who are the ˝guardians of the rule of law˝54 from reviewing a quasi-judicial body’s decision should be seen as a danger to principles of natural justice, like audi alteram partem, and the statutory-based Article 6 of the ECHR. It is therefore idle to claim that the rule of law is equally upheld if a case is decided by the Tribunal, because that is true only where the Tribunals’ decisions are subject to control by ordinary courts.55 The historical artefact of the High Court’s supervisory jurisdiction derives from its common law function – to correct errors of law of inferior courts and protect individuals ˝against unlawful actions by the Government and other public bodies˝.56
Moreover, if an error of law on a point of principle or practice is not channelled into the legal system, tribunals could repeat the same mistakes and perpetuate injustice in the vacuum of clarifications of principles by a court. Observing administrative law in the wider context also reveals the constitutional implication of Cart’s reversal. In accordance with the stare decisis doctrine, common law is developed step by step through binding judgments.57 Each case provides an opportunity to define, clarify and give authoritative guidance.58 By preventing the judicial review of a tribunal’s decision from being filed, the opportunities to update common law are taken from its authors – the Courts. Cases that were judicially reviewed through the Cart mechanism were, in the terms proposed by Cane, ˝policy˝ or ˝high-profile˝59 cases and were significant for the development of administrative and constitutional law. As described by Baroness Hale, preventing judicial review would lead to the occurrence of ˝local law˝,60 a separate field of law which would develop its own principles (possibly in breach of common law fundamental principles) without being corrected by a court with unlimited jurisdiction that is actually involved in the development of the common law through precedents.
The discontinuation of Cart will not only negatively impact individuals, but will also cause a disjointed development of the law used by courts and the law used by tribunals. In this way, the Executive directly enabled the development of what Dicey with much hostility called ˝droit administratif˝,61 (administrative law separate from the rest of common law). French droit administrative entails that the government and state officials are subject to a separate system of rights and powers that is superior to ordinary law which applies to citizens.62 With this reform, equality under ordinary law, which is arguably the most fundamental factor of English common law,63 is slowly and inconspicuously being erased, with a possible development of a separate law applicable only to the State but not to citizens.
Further Reform Notice: Ouster Clauses
Even though an initially proposed reform of ouster clauses was not ultimately included in the Bill, the Government used the Consultation Paper as a platform to present its agenda on this issue. More concerningly, the extinguishment of the Cart mechanism was put on statutory footing in the shape of an ouster clause which indicates that the Government already started testing the waters for the increased use of ouster clauses. The Government stated that while they would not proceed with the reform, future legislation would focus on ensuring that courts give ˝more effect to ouster clauses˝.64 Due to the significance of the announcement, this article will dedicate a brief analysis to the proposal.
Two main arguments for ouster clause reform appear in the Consultation Paper. One concerns the appropriateness of judicial review over certain ˝political˝ issues (the question of justiciability), and the other touches on the efficiency of administrative scrutiny.65 The Government argued that supervisory jurisdiction could be extinguished in cases which were reviewed by a special tribunal – so as not to duplicate the process of review. It could also be extinguished in ˝areas of high policy˝, which should remain under the exclusive control of the Government.66 While the Paper did not offer any specific conclusions on the way to ensure greater enforcement of ouster clauses by the judiciary, it certainly revealed a major substantive change – legislation would re-introduce the pre-Anisminic67 divide between jurisdictional and non-jurisdictional errors.68 The House of Lords indicated that a jurisdictional error would not solely imply that a decision was made outside the remit of a body’s authority, but might also include breaches of procedural fairness, or other errors of law made in the decision-making. This was an important decision, as it radically changed the approach of judges to judicial review. Even though its opponents argue that South East Asia Fire Bricks69 proved that Anisminic only rejected the divide in that particular case,70 a number of later authorities treated the Anisminic decision as a clear rejection of the divide. The Court in Page, for example, asserted that ˝any error of law made by an administrative tribunal in reaching its decision can be quashed for error of law˝.71 Similarly, the Court in Cart confirmed that and held that the distinction between jurisdictional and non-jurisdictional errors is artificial.72 Moreover, Privacy International reaffirmed the long-established principle by stating that ˝Anisminic […] rendered obsolete the distinction˝ between jurisdictional and non-jurisdictional errors.73 These important authorities on access to judicial review demonstrate that regardless of the Court’s decision in Anisminic, courts in later cases interpreted Anisminic’s ratio in this way, thus eventually reaffirming a strong common law presumption against ouster clauses.
However, while the reform was not pursued in this Bill, future legislation is likely to discard the common law presumption. Despite the Government indicating that ouster clauses would not extinguish the High Court’s power of judicial review in strictly jurisdictional errors (such as ultra vires and serious breaches of natural justice),74 review on other grounds that were available up until now will be restricted. Statutory ouster clauses are in direct violation of the common law fundamental right of access to courts,75 regardless of whether an ouster clause would preclude any kind of review (like in Anisminic) or would allocate this function to another body.76 Moreover, this reform proposal has greater implications on judges’ ability to review the Executive’s decisions. In a debatable approach taken by Lord Wilberforce77 in Anisminic, the House justified their decision on the basis of the ultra vires doctrine.78 The reasoning reconciled parliamentary sovereignty and judicial review, arguing that Parliament always legislates in accordance with the rule of law.79 In this way, the judiciary did not interfere with primary legislation and avoided a conflict between Courts and Parliament. However, if (or when) the Government proposes ouster clause reform as part of a bill, Courts will no longer be able to rely on the claim that they protect parliamentary sovereignty as they would be ruling directly against Parliament’s intention.80 Therefore, legislation on ouster clauses would not only restrict access to judicial review, but would also lead to a paradigm shift. Judges would no longer be able to reason cases as if they were protecting parliamentary sovereignty, but would instead have to base their decisions on the common law theory of judicial review. This would deepen the divide between parliamentary sovereignty and the rule of law, and ultimately lead to a profound revival of an institutional conflict in the British constitution: the Executive (together with Parliament backed by parliamentary sovereignty) on one side, and the Courts (backed by the rule of law) on the other.
Once again, the Government used the arguments of administrative efficiency and political contention to justify possible future changes in judicial review jurisprudence without much consideration for the rule of law, which will likely be irreversibly damaged.
Conclusion
All three reform proposals indicate a substantial change in judicial review procedure. Their impact will be twofold: firstly, they will limit access to judicial review and the protection of constitutional rights; and secondly, they will extinguish the High Court’s power, or transfer it to another administrative agency and therefore effectively place the Executive above the law and restructure Britain’s constitutional regime. Given the rule of law concerns that permeate, all these proposals should be rejected. While it is understandable that judicial resources are limited, it is inappropriate to suggest that the solution lies in limiting access to justice. These procedural modifications should be deemed unacceptable because they ignore the rule of law and open the way for Britain to become a substantive ˝elective dictatorship˝, with a considerably diminished system of checks and balances. The judicial approach to this new type of legislation will have to change unambiguously to uphold the rule of law as one of the main components of the British constitution.
I would like to thank all the editors who have worked on this piece. Firstly, I want to thank the Editor-in-Chief Edward for working so patiently with me throughout the editorial process. I would like to thank my Notes Editors Eponine and Claire for all their comments and an Alumnus Editor Shukri for his advice on legal writing and useful insights into administrative law. My thanks also go to my Publications Editor Surabhi. Lastly, I am grateful to an Alumna Editor and my dear friend, Skye, for all her help and encouraging words. All errors and opinions are my own.
[1] Conservative and Unionist Party, Get Brexit Done, Unleash Britain’s Potential (The Conservative and Unionist Party Manifesto 2019) 48.
[2] Judicial Review and Courts Bill 2021.
[3] ibid.
[4] Ministry of Justice, ‘Judicial Review Reform: The Government Response to the Independent Review of Administrative Law’ (March 2021) 13-18.
[5] Tevž Sitar, ‘Rethinking the Concept of the Rule of Law in Modern Britain’ (LSE Law Review Blog, 16 April 2021) <https://blog.lselawreview.com/2021/04/rethinking-the-concept-of-the-rule-of-law-in-modern-britain> accessed 30 September 2021.
[6] Martin Loughlin, ‘The Rule of Law in European Jurisprudence’ (European Commission for Democracy through Law (Venice Commission), 29 May 2009) 5.
[7] Ministry of Justice, ‘Judicial Review Reform Consultation: The Government Response’ (July 2021) [59]. (While this is not a new type of remedy, the suspension capability postpones the quashing effect of a regular quashing order.)
[8] Judicial Review and Courts Bill 2021, pt 1(1)(1).
[9] Judicial Review Reform Consultation (n 7) 18.
[10] ibid 20.
[11] In the absence of damages, a correct decision is probably the ultimate goal of judicial review proceedings.
[12] Judicial Review Reform Consultation (n 7) [66].
[13] Lord Hailsham of St Marylebone, The Dilemma of Democracy (Collins 1978).
[14] Albert V Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) 4.
[15] Andrew Le Sueur, Maurice Sunkin, Jo Eric Khushal Murkens, Public law: Text, Cases, and Materials (4th edn, Oxford University Press 2019) 152.
[16] As was the case in the European Union (Notification of Withdrawal) Act 2017.
[17] House of Commons European Scrutiny Committee, The EU Bill and Parliamentary Sovereignty (HC 2010-11, Tenth Report, 633-I) para 25.
[18] We can only speculate at this point whether this will or will not happen in reality, but the Bill certainly allows the Government to lawfully reconfigure a part of the constitutional order with the help of Parliament (acting under the Executive’s control of the House of Commons).
[19] Judicial Review and Courts Bill 2021 s 2(1)(2).
[20] R (on the application of Cart) v Upper Tribunal [2011] UKSC 28. The Supreme Court heard two cases (R (on the application of Cart) v The Upper Tribunal; R (MR (Pakistan)) v The Upper Tribunal and Secretary of State for the Home Department). In both cases, the appellants challenged the Upper Tribunal’s decisions to refuse permission to appeal the First-tier Tribunal decision. Both appeals before the Supreme Court were dismissed.
[21] Judicial Review Reform (n 4) 24.
[22] Cart (n 20) [24].
[23] ibid [1].
[24] ibid [33].
[25] ibid [27].
[26] Judicial Review Reform (n 4) 25.
[27] Judicial Review Reform Consultation (n 7) [35].
[28] ibid [35].
[29] Joe Tomlinson and Alison Pickup, ‘Putting the Cart before the horse? The Confused Empirical Basis for Reform of Cart Judicial Reviews’ (UK Constitutional Law Association, 29 March 2011) <https://ukconstitutionallaw.org/2021/03/29/joe-tomlinson-and-alison-pickup-putting-the-cart-before-the-horse-the-confused-empirical-basis-for-reform-of-cart-judicial-reviews/> accessed 16 August 2021.
[30] Judicial Review Reform (n 4) [51].
[31] Tomlinson et al. (n 29).
[32] Cart (n 20) [92].
[33] Judicial Review Reform (n 4) 25.
[34] Cart (n 20) [57].
[35] Joanna Bell, ‘The Relationship between Judicial Review and The Upper Tribunal: What Have the Courts Made of Cart?’ (2018) Public Law 394, 396.
[36] Cart (n 20) [41].
[37] Bell (n 35) 406.
[38] R (on the application of Essa) v Upper Tribunal (Immigration and Asylum Chamber) [2012] EWHC 1533 (QB).
[39] R (on the application of HS) v Upper Tribunal (Immigration and Asylum Chamber) [2012] EWHC 3126 (Admin).
[40] ibid [35].
[41] R (on the application of Ground Rents (Regisport) Ltd) v Upper Tribunal (Administrative Appeals Chamber) [2013] EWHC 2638 (Admin).
[42] R (on the application of AA (Iran)) v Upper Tribunal (Immigration and Asylum Chamber) [2013] EWCA Civ 1523.
[43] Judicial Review Reform Consultation (n 7) [36].
[44] Cart (n 20) [56].
[45] ibid [56].
[46] ibid [36].
[47] Judicial Review Reform Consultation (n 7) [31].
[48] ibid [31].
[49] ibid [37].
[50] Cart (n 20) [37].
[51] ibid [30].
[52] ibid [31].
[53] ibid [30].
[54] R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [139].
[55] Sir William Wade and Christopher Forsyth, Administrative law (11th edn, Oxford University Press 2014) Part I, ch. 2.
[56] Lord Woolf and others, De Smith’s Judicial Review (8th edn, Sweet & Maxwell 2020) para 4006.
[57] Neil Duxbury, The Nature and Authority of Precedent (Cambridge University Press 2008) 12.
[58] ibid 25.
[59] Peter Cane, ‘Understanding Judicial Review and its Impact’ in Marc Hertogh and Simon Halliday (eds), Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge University Press 2004) 18-19.
[60] Cart (n 20) [41].
[61] Dicey (n 14) LXI.
[62] ibid 165.
[63] ibid 114.
[64] Judicial Review Reform Consultation (n 7) [47].
[65] Judicial Review Reform (n 4) 40.
[66] ibid [90].
[67] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Anisminic Ltd owned property in Egypt which was sequestrated by the Egyptian Government in 1956. In applying for compensation for the property, the Foreign Compensation Commission misconstrued the Foreign Compensation Act 1950, s. 4(1) and refused to grant compensation to Anisminic. The House of Lords held that s 4(4) (which contained an ouster clause) did not oust judicial review of such a case, since the determination of refusing compensation made by the Commission was only a purported determination which was amenable to judicial review and therefore inquired whether the Commission’s determination was a nullity.
[68] ibid 171.
[69] South East Asia Fire Bricks Sdn. Bhd. v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363.
[70] Judicial Review Reform Consultation (n 7) [49].
[71] R v Lord President of the Privy Council, ex p. Page [1993] AC 682.
[72] Cart (n 20) [111].
[73] Privacy International (n 54) [52].
[74] Judicial Review Reform Consultation (n 7) [50].
[75] Douglas E. Edlin, ‘A Constitutional Right to Judicial Review: Access to Courts and Ouster Clauses in England and the United States’ (2009) 57(1) The American Journal of Comparative Law 67, 71.
[76] Like in Privacy International, where the Supreme Court majority held that a tribunal as a court of unlimited jurisdiction was not capable of protecting individual’s rights. See Privacy International (n 53).
[77] Whereas Lord Morris took the diametral opposite approach and strictly followed the statutory text in the Foreign Compensation Act 1950.
[78] Edlin (n 75) 77.
[79] ibid 77.
[80] Of course, Parliament’s intention is a contested concept with some scholars even denying its existence, but without delving deep into legislative theory, in practice, it will be difficult to deny the underlying purpose of such legislation in light of a clear explanation and justification provided by the Government in its Consultation paper. See: Neil Duxbury, Elements of Legislation (Cambridge University Press 2012) 93.
Tevž Sitar
LLB (LSE) ’23 and Junior Notes Editor of the LSE Law Review 2020-21, Public Law Notes Editor of the LSE Law Review Summer Board 2021 and the LSE Law Review 2021-22