Constitutional and Administrative Law lecture 25.02.19
Exclusion of Judicial Review (lecture 19)
General presumption against exclusion of judicial review
Courts decide on issues, if parl. wants to get involved have to do it explicitly
Tension with Parliamentary Sovereignty
Techniques of ouster:
1. Total ouster
2. Time limit clause-legislation says you can get decision reviewed within a certain
period of time, but not after this; some ability to challenge decision but given limited
time frame
3. Conclusive evidence clause-if minister of public agency says something is ‘so’, can
effectively oust courts’ jurisdiction
4. Alternative tribunal
1) Total ouster:
Nationalisation of British property in Egypt after Suez Canal crisis
Anisminic v FCC-Egyptians decided to nationalise canal; British and French not happy
with this; Egyptians as a result to British action, nationalise British property;
Anisminic mine owners in Egypt; Egyptians and UK come to agreement. Foreign
Compensation (FCC) had to determine who was entitled to compensation; key issue
was need to determine ‘successor in title’ (Anisminic sold mine to Egyptians and
they’re not British nationals?); FCC decision: “the determination of the FCC….shall
not be called in question in any court of law” (saying you can’t challenge decision);
case eventually gets to HoL with a majority (3-2) that FCC wrong in interpretation of
‘successor in title’; could’ve got original owner; this was an error of law; therefore
decision (due to error of law) a nullity and, since it’s not a decision, it’s not protected
by the ouster clause. Void from beginning and can intervene and overturn decision;
suggested that that ouster clauses are ineffective (BUT this is misleading)
Privacy International case-challenge decision of Investigatory Powers Tribunal (IPT)
on scope of warrant authorising computer hacking by GCHQ (Gov.); s.67(8)
RIPAcant do this on grounds that succeeded in Anisminic (since SSC had gone
outside its jurisdiction); Divisional Court divided (1v1); Court of Appeal said it’s
different from Anisminic and clause is effective due to 2 reasons (reason-1.
Language; words in parentheses and 2. Context-implicit Parliament trusted IPT;
looks at sensitive cases where police and security have no other way to receive
information and special procedural rules placed, especially closed procedures; able
to look at material that they couldn’t discuss to see whether rules have been met)
VERY different context from Anisminic (here it’s about security, crime and terrorism
not just money)
2) Time Limit clauses:
Ostler case-two part road widening scheme; to prevent objection to first part,
Department of Transport agreed, secretly, with company would provide access in
second part; widening in second part affected Ostler-would have objected to first
part if he knew about agreement; only finds out about this after time for going to
court has expired; brings Judicial Review case against first part where appeal
permitted within six weeks on grounds of illegality, otherwise-“shall not be
questioned in any legal proceedings whatsoever”. HOWEVER, he was not aware
about first part. Ostler doesn’t succeed-Lord Denning says its different from
Anisminic due to 4 reasons [1. Anisminic was total ouster, this is time limit; 2.
Exclusion of Judicial Review (lecture 19)
General presumption against exclusion of judicial review
Courts decide on issues, if parl. wants to get involved have to do it explicitly
Tension with Parliamentary Sovereignty
Techniques of ouster:
1. Total ouster
2. Time limit clause-legislation says you can get decision reviewed within a certain
period of time, but not after this; some ability to challenge decision but given limited
time frame
3. Conclusive evidence clause-if minister of public agency says something is ‘so’, can
effectively oust courts’ jurisdiction
4. Alternative tribunal
1) Total ouster:
Nationalisation of British property in Egypt after Suez Canal crisis
Anisminic v FCC-Egyptians decided to nationalise canal; British and French not happy
with this; Egyptians as a result to British action, nationalise British property;
Anisminic mine owners in Egypt; Egyptians and UK come to agreement. Foreign
Compensation (FCC) had to determine who was entitled to compensation; key issue
was need to determine ‘successor in title’ (Anisminic sold mine to Egyptians and
they’re not British nationals?); FCC decision: “the determination of the FCC….shall
not be called in question in any court of law” (saying you can’t challenge decision);
case eventually gets to HoL with a majority (3-2) that FCC wrong in interpretation of
‘successor in title’; could’ve got original owner; this was an error of law; therefore
decision (due to error of law) a nullity and, since it’s not a decision, it’s not protected
by the ouster clause. Void from beginning and can intervene and overturn decision;
suggested that that ouster clauses are ineffective (BUT this is misleading)
Privacy International case-challenge decision of Investigatory Powers Tribunal (IPT)
on scope of warrant authorising computer hacking by GCHQ (Gov.); s.67(8)
RIPAcant do this on grounds that succeeded in Anisminic (since SSC had gone
outside its jurisdiction); Divisional Court divided (1v1); Court of Appeal said it’s
different from Anisminic and clause is effective due to 2 reasons (reason-1.
Language; words in parentheses and 2. Context-implicit Parliament trusted IPT;
looks at sensitive cases where police and security have no other way to receive
information and special procedural rules placed, especially closed procedures; able
to look at material that they couldn’t discuss to see whether rules have been met)
VERY different context from Anisminic (here it’s about security, crime and terrorism
not just money)
2) Time Limit clauses:
Ostler case-two part road widening scheme; to prevent objection to first part,
Department of Transport agreed, secretly, with company would provide access in
second part; widening in second part affected Ostler-would have objected to first
part if he knew about agreement; only finds out about this after time for going to
court has expired; brings Judicial Review case against first part where appeal
permitted within six weeks on grounds of illegality, otherwise-“shall not be
questioned in any legal proceedings whatsoever”. HOWEVER, he was not aware
about first part. Ostler doesn’t succeed-Lord Denning says its different from
Anisminic due to 4 reasons [1. Anisminic was total ouster, this is time limit; 2.
