Ouster of Judicial Review

Introduction

Judicial review is the courts’ main tool for checking the lawfulness of public decision-making. Some Acts use ouster (or privative) clauses to try to limit that oversight, for example by declaring decisions “final” or by setting strict time limits. These provisions test the limits of parliamentary intention, the role of the executive, and the courts’ duty to ensure lawful administration.

This guide sets out the legal rules and case law on ouster clauses. It explains how judges read these provisions, why wording matters, and how the rule of law shapes outcomes. You’ll find practical steps for advising on whether a clause really blocks review, and how to proceed when deadlines and procedural preconditions apply.

What You’ll Learn

• What ouster clauses are, the forms they take, and why they are used
• How the Anisminic principle treats legal errors and the meaning of “determination”
• How the principle of legality protects access to the courts and fair process
• When time limits and procedural preconditions will be enforced
• The effect of major cases, including Anisminic and Privacy International
• The position after Cart and the Judicial Review and Courts Act 2022
• Practical steps for challenging decisions despite ouster wording
• How to handle collateral challenges where direct review is time-barred

Core Concepts

What is an ouster clause?

• An ouster clause is statutory wording intended to restrict or exclude judicial review. Common formats include:
  • “Decisions shall be final” or “shall not be questioned in any court”
  • Mandatory time limits for bringing challenges
  • Requirements to use internal appellate routes before going to court
• Policy reasons often cited for such clauses include administrative certainty, speed, and reliance on specialist tribunals. These aims must be weighed against the need for lawful decision-making and access to justice.
• Courts start from a strong presumption that Parliament does not intend to remove judicial oversight without very clear wording.

The Anisminic approach to legal errors

• In Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the House of Lords held that a legal error by the decision-maker meant there was no valid “determination” at all. The ouster clause (“determination shall not be called into question”) therefore did not protect an unlawful decision.
• The result is often explained this way:
  • All errors of law are treated as going to jurisdiction.
  • If the decision is infected by an error of law, it is a nullity and falls outside any “finality” clause.
• Broadly, two categories are discussed:
  • Absolute ousters: clauses aiming to exclude all review. Courts read these very narrowly.
  • Partial ousters: clauses that limit the route or timing of challenges. These may be given effect if consistent with fair process and clear statutory design.
• Anisminic shifted the focus from labels like “jurisdictional” vs “non-jurisdictional” error, to a more practical question: did the decision-maker proceed according to law?

The principle of legality and access to the courts

• The principle of legality means that fundamental rights—such as access to the courts and a fair hearing—are not removed by general or vague words. Only very clear, express wording will do.
• Key cases support this approach:
  • R v Lord Chancellor, ex p Witham [1998] QB 575: court fees that effectively blocked access to justice were unlawful without clear statutory authority.
  • R (Unison) v Lord Chancellor [2017] UKSC 51: employment tribunal fees were quashed because they impeded access to justice.
  • R (Jackson) v Attorney General [2005] UKHL 56: strong judicial statements about the rule of law and the courts’ role in maintaining constitutional standards.
• When an ouster clause appears to cut across these fundamentals, courts look for the clearest language before accepting that Parliament meant what the clause suggests.

Time limits and procedural preconditions

• Statutes often set strict time limits for challenges (for example, 6 weeks from publication of an order). Courts usually uphold such limits, especially in planning and infrastructure contexts where certainty is important.
• Ex p Ostler [1977] QB 122 illustrates that where Parliament provides a short, defined period for challenge, late claims may be barred even if the claimant alleges illegality.
• Smith v East Elloe RDC [1956] AC 736 is an earlier authority pointing in the same direction: once the time limit passes, challenges to compulsory purchase orders are generally closed.
• Collateral challenge—raising legality as a defence in later proceedings—remains possible in some contexts (Boddington v British Transport Police [1998] AC 143), but may be curtailed where a statute clearly provides an exclusive and time-limited challenge route.

Modern developments and Parliament’s response

• R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22: a strongly worded ouster in the Regulation of Investigatory Powers Act 2000 did not exclude all review for error of law. The Supreme Court held that only the clearest words would remove review even for jurisdictional error, and the clause fell short of that standard.
• R (Cart) v Upper Tribunal [2011] UKSC 28 allowed limited review of certain Upper Tribunal permission decisions. Parliament later legislated to remove most such challenges: the Judicial Review and Courts Act 2022 now largely ousts “Cart” judicial reviews, with only very narrow exceptions.
• The current trend shows ongoing dialogue between courts and Parliament: clear drafting can limit routes and timelines, but the courts remain reluctant to read clauses as removing all oversight of legal error or fundamental procedural unfairness.

Key Examples or Case Studies

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

• Issue: Whether a clause stating that a Commission’s “determination” should not be questioned barred review where the Commission erred in law.
• Outcome: The House of Lords held that a legally erroneous decision was not a valid “determination” at all. The ouster clause did not apply.
• Why it matters: It set the approach that legal errors can render decisions a nullity, severely limiting the effect of absolute ouster clauses.

R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22

• Issue: Whether a clause stating that IPT decisions “shall not be questioned in any court” excluded review for legal error.
• Outcome: The Supreme Court read the provision narrowly and allowed review for certain errors of law. Only the very clearest words would remove oversight even for jurisdictional error.
• Why it matters: Reaffirmed a strong reading of Anisminic and the principle of legality in a modern statutory setting.

Smith v East Elloe RDC [1956] AC 736 and ex p Ostler [1977] QB 122

• Issue: Whether statutory time limits and exclusive procedures prevent later challenges to orders or schemes.
• Outcome: Courts upheld strict time limits and exclusive statutory routes, limiting both direct and (in Ostler’s context) collateral attacks after the deadline.
• Why it matters: Shows that partial ousters—especially time bars—are often enforced to secure finality, provided they are clear.

Boddington v British Transport Police [1998] AC 143

• Issue: Whether a defendant could raise the invalidity of a byelaw as a defence in criminal proceedings (a collateral challenge).
• Outcome: Yes, as a general principle, unless the statutory scheme makes an alternative, exclusive route clear.
• Why it matters: Keeps a path open for legality challenges where Parliament has not plainly excluded collateral review.

R (Jackson) v Attorney General [2005] UKHL 56 and R (Unison) v Lord Chancellor [2017] UKSC 51

• Jackson: Senior judges emphasised the rule of law and the role of the courts in maintaining constitutional standards.
• Unison: The Supreme Court struck down tribunal fees that impeded access to justice.
• Why they matter: Both cases strengthen the reading that Parliament must use very clear words to cut down access to the courts, which shapes how ouster clauses are interpreted.

R (Cart) v Upper Tribunal [2011] UKSC 28 and the Judicial Review and Courts Act 2022

• Cart permitted limited review of Upper Tribunal permission decisions.
• The 2022 Act now largely removes those challenges, subject to narrow exceptions.
• Why it matters: Illustrates Parliament’s capacity to restrict review where the intention is clear, while still leaving a minimal safety valve.

Practical Applications

• Read the clause with care:
  • Identify whether it claims to exclude all review or only to limit timing or route.
  • Note any internal appeal or review requirements and whether they are mandatory.
• Apply Anisminic reasoning:
  • Ask whether the alleged legal error renders the decision a nullity.
  • If so, argue the decision falls outside the protection of any “finality” wording.
• Deploy the principle of legality:
  • Where access to justice or fair process is affected, argue that only the clearest statutory language can remove review.
  • Use Witham and Unison to support arguments on court access.
• Manage time limits:
  • Diarise statutory deadlines immediately; seek extensions only where allowed.
  • If out of time, consider collateral challenge or other routes, checking whether the statutory scheme excludes them.
• Consider collateral challenge:
  • Where enforcement or criminal proceedings follow, assess whether you can contest validity as a defence (Boddington), unless a statute like Ostler’s regime makes the time-limited route exclusive.
• Check for modern constraints:
  • For Upper Tribunal permission decisions, assess the effect of the Judicial Review and Courts Act 2022 before issuing a claim.
• Build the record:
  • Gather the decision, statutory source, guidance, and any internal review outcomes.
  • Identify procedural defects: failure to consider relevant matters, improper purpose, fettering discretion, or unfair hearing.
• Choose suitable grounds:
  • Error of law, error of fact (where material), improper purpose, failure to consult (if required), procedural unfairness, or lack of jurisdiction.
• Remedies and forum:
  • Consider whether the High Court (or Court of Session in Scotland) is the correct venue and whether a statutory appeal is available.
  • Seek interim relief if time is tight and harm is imminent.
• Drafting tip:
  • In pleadings, focus on why the clause, properly read, does not exclude review of your particular ground, rather than attacking the clause in the abstract.

Summary Checklist

• Identify the type of ouster clause: absolute vs time/route-limiting
• Apply Anisminic: a legally erroneous decision is not protected
• Use the principle of legality to protect access to the courts
• Respect strict statutory time limits; consider exceptions only where clear
• Assess whether collateral challenge is available or excluded
• Cite key cases: Anisminic; Privacy International; Ostler; Boddington; Witham; Unison
• Consider the impact of the Judicial Review and Courts Act 2022 on tribunal cases
• Exhaust mandatory internal remedies where required and useful
• Frame clear grounds: error of law, unfairness, or lack of jurisdiction
• Keep a tight handle on evidence, deadlines, and interim relief

Quick Reference