On Ouster Clauses (Again) – UK Constitutional Law Association

When we think of the most important ouster clauses in the law of judicial review, we might think of the relevant parts of the Foreign Compensation Order considered in Anisminic, or section 67(8) the Regulation of Investigatory Powers Act, crucial to the decision in Privacy International. We might consider section 2 of the Judicial Review and Courts Act, restricting Cart-type reviews. Or we might look to provisions in the recently-passed Illegal Immigration Act and forthcoming Victims and Prisoners Bill, which purport to shield the respective legislation from certain kinds of review under the Human Rights Act.

By contrast, few would immediately think of the provisions in the Senior Courts Act 1981, governing the circumstances under which judicial review can be brought against Crown Court decisions relating to sentencing or indictment. Yet these provisions qualify as an ouster clause like any other. Section 29(3) of the Act is material for present purposes. It confirms that:

In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court.

The key phrase here is “other than its jurisdiction in matters relating to trial on indictment”. The most literal and straightforward reading of this provision would suggest, therefore, that this section operates as a clear ouster, specifically removing from the High Court the jurisdiction to consider judicial review claims into any Crown Court decision “relating to trial on indictment”.

The Ouster Tested

In the recent case of R (Exolum Pipeline) v Crown Court at Great Grimsby (‘Exolum’) Fordham J was required to interpret and apply this provision. It was by no means the first time the High Court has been required to do so: there is a fairly long list of co-ordinate authorities on this issue and, at first blush, many of them point in different directions when it comes to section 29(3). Yet in this case, as he so often does, Fordham J managed to reconcile the practically irreconcilable.

Each of the relevant cases, starting with R v Maidstone Crown Court ex p Harrow LBC [2000] QB 719 (‘Harrow’) saw judges, apparently without attracting too much controversy, judicially reviewing certain decisions of the Crown Court, notwithstanding that they related to matters concerning trial on indictment (the question of what constitutes a relevant matter “relating to trial on indictment” is another thorny question, not tackled here). Illustrative examples include Harrow itself (review of supervision order), Kenneally (review of hospital order), and TM Eye (review of refusal to make costs order). But how can these decisions (and others like them) be reconciled with section 29(3)?

The chief justification provided by the judges – one that will likely elicit a groan from many public lawyers who have attempted to wrangle with the concept – is that this section does not apply to decisions which were undertaken “for want of jurisdiction” (Harrow). A Crown Court judge who acts without jurisdiction (or in “excess of jurisdiction”, per Belhaj) does not fall within the category of cases to which the ouster in section 29(3) would attach in the first place. The court is not going against the statutory prohibition on reviewing an order because, vitiated by a lack of jurisdiction, the order in question becomes a mere “purported order” (Harrow). This kind of reasoning has obvious resonance with the reasoning in classic cases like Anisminic and Page

Defining quite what “jurisdiction” means in this context is not straightforward. A majority of the cases in which a decision of the Crown Court was found to be reviewable involved an alleged public law error relating to a statutory precondition. It is easy to see why this kind of mistake would rob the Crown Court of its jurisdiction to act. But in other cases, the High Court went further, recognising that it had jurisdiction to review errors of law relating to mistaken purposes of the Padfield kind (M), irrelevant considerations (TM Eye), and errors of law which did relate to the construction of statutory preconditions (Aylesbury).

To make sense of this, Fordham J first set out a number of possibilities as to when the High Court might have jurisdiction to hear a judicial review application against a decision seemingly cut off by section 29(3). Firstly, jurisdiction could be recognised, on what he labelled the Expansive Basis, whereby:

A crown court decision concerning a matter relating to trial on indictment is susceptible to judicial review for public law error, even if it would offend the Core Purposes of s.29(3)

Alternatively, it could operate on what he called the Narrow Basis:

A crown court decision concerning a matter relating to trial on indictment is susceptible to judicial review for public law error in the crown court’s application of a statutory precondition to a power or duty, provided that it would not offend the Core Purposes of s.29(3)

A third possibility was the so-called Intermediate Basis:

A crown court decision concerning a matter relating to trial on indictment is susceptible to judicial review for public law error, provided that it would not offend the Core Purposes of s.29(3) 

To these three positions we can add two more, which were considered elsewhere in the judgment: one which sees the ouster in 29(3) as total and which therefore allows no judicial review against any qualifying decision whatsoever, and a further position where the pre-Anisminic distinction between jurisdictional and non-jurisdictional error is revived. So, putting this together, we have the following interpretations of the High Court’s jurisdiction, ranging from weakest to strongest:

  • No jurisdiction: no public law errors can be reviewed.
  • Narrow Jurisdiction: only public errors relating to statutory pre-conditions can be reviewed.
  • Pre-Anisminic Jurisdiction: only public law errors which are jurisdictional in the pre-Anisminic sense can be reviewed.
  • Intermediate jurisdiction: all public law errors can be reviewed if this would not go against the statutory purpose (on which see below).
  • Wide jurisdiction: all public law errors can be reviewed.

The Jurisdictional Choice

Fordham J began by knocking out the weakest candidates. The No Jurisdiction position was rejected: the idea that there could be no residual review role for the High Court under any circumstances was both unprincipled and impossible to reconcile with the case law. Neither was the Wide Jurisdiction position tenable – that would render the statutory provisions completely otiose. Pre-Anisminic Jurisdiction was, happily, also rejected for being archaic, unworkable and out of line with the decided cases.

That left Narrow Jurisdiction and Intermediate Jurisdiction. Fordham thought that recognising (only) a narrow jurisdiction was a perfectly possible course of action (albeit one which would be difficult to fully reconcile with some of the decided cases). Limiting review only to those cases where a statutory precondition was misunderstood would fit well with the language of “jurisdiction” and would provide a neat and tidy solution going forwards. Indeed, it was found that on the facts of this case, which are not relevant for present purposes, the claimant would be entitled to bring a judicial review claim on this basis alone. This was enough to decide the live issue in the case, and Fordham J confirmed only that the court’s jurisdiction should extend “at least this far”.

Yet, Fordham J indicated that he ultimately preferred to go further, endorsing the Intermediate Jurisdiction option. It did not make sense to him that errors relating to statutory preconditions should be separated off as a distinct legal category of error:

Why should a material public law error vitiate the crown court decision when it relates to a statutory precondition, but not when it relates to the exercise of power or discharge of duty? Why should procedural unfairness vitiate a decision only when it can be said to be a public law error relating to a statutory precondition? … Why should unreasonableness, or reliance on a legal irrelevancy, or the giving of legally inadequate reasons, or a legal insufficiency of enquiry, vitiate a decision only when they relate to a statutory precondition?

But was the Intermediate Jurisdiction interpretation consistent with the statute? To determine this, Fordham J focused on the “core purposes” behind section 29(3). They were two-fold: to prevent undue interference in the actual trial process itself, and to siphon away challenges to the verdict or sentence imposed and encourage the use of tailored mechanisms for reviewing and appealing those decisions. What is notable (although Fordham J is not so explicit about this) is that these purposes do not speak to the kind of grounds which can be lodged against Crown Court decisions; rather, they relate to the kind of decision against which a judicial review may be lodged in the first place. This is in line with earlier case law (see here and here) which rejected the possibility of judicial review being brought against sentence imposed by the Crown Court, even on grounds of a lack of jurisdiction or misunderstanding of a statutory precondition.

However, the statutory purposes did not in and of themselves explain why the Intermediate Jurisdiction approach should be adopted: indeed, the adoption of any of the positions sketched out above (save, perhaps, Wide Jurisdiction) would be consistent with it. Here, Fordham J invoked the “constitutional touchstone” he saw as central to decisions such as Cart: the proper construction of section 29(3) must allow for a “level of scrutiny required by the rule of law”. In language reminiscent of Lord Carnwath’s judgment in Privacy International, Fordham J said this:

Parliament’s statutory overlay can undoubtedly influence the scope and shape of judicial review [but] the final arbiters of whether and how that operates are the Courts … it is the Courts who determine what the rule of law requires.

So, in a roundabout way, the rule of law (once again) provided a guide as to the proper judicial construction of a contested ouster clause.

The Bigger Picture

The Exolum decision leaves a lot open. The Intermediate Jurisdiction position is recommended but this is, technically, obiter dicta. Quite how that position should work in practice is unclear: does the “statutory purpose” qualifier only exclude review into ongoing trials or sentences? Otherwise, are all errors of law (necessarily) reviewable? Given the subject matter, Fordham J’s view may not be the final word in this litigation.

Exolum is interesting for a number of further reasons. It reflects Fordham J’s statement early in the judgment that “judicial review is not necessarily an all-or-nothing jurisdiction”. It is intuitive to think of ouster clauses in black and white terms: either an ouster is successful, and judicial review is entirely excluded, or else it fails, and judicial review operates without any constraints. Exolum provides another example as to why this is rarely the case in practice. Statutory ousters can purport to limit some grounds of review, to some kinds of decisions (or both). Working out exactly what is affected by an ouster is complicated. Further, judicial solutions are not always straightforward either. The pragmatic approach in Cart certainly involved a fair amount of judicial creativity. Fordham J’s approach in this case is very different to that adopted in Cart, but it is arguably no less creative.

This case, and the dicta within it, have an obvious relevance for considering the lawfulness of some of the more outlandish ouster clauses we have seen in recent legislation (and those which, we are told, may well be passed in the near future). Of course, the ouster in section 29(3) is fairly benign; whilst there are undoubtedly good reasons why we might think it proper that certain parts of the Crown Court’s job should not be subject to judicial review, those reasons may not hold in the very different context of Home Office decision-making. Further, decisions ‘ousted’ under section 29(3) would lie against judicial, rather than executive bodies (although the Crown Court would not be considering the issues raised in a judicial review application directly) and there are alternative routes to review that decision (albeit, again, they may not involve the same kinds of questions raised in a judicial review application). Again, these elements will likely be missing in the context of other, more controversial, ouster clauses.

Finally, it is worth noting that Philip Murray has helpfully drawn attention to the recent Court of Appeal decision in LA. In that case, he suggests, the Court is shying away from Lord Carnwath’s dicta in Privacy International and favours the application of a more conservative approach to ouster clauses. That case certainly deserves careful attention. But as I have noted above, we do not see the same reticence from Fordham J in this case. Divisions as to the proper constitutional effects of ouster clauses are not limited to those judges sitting in the Supreme Court and Privacy International has not settled these issues for good. These constitutional tensions will remain unresolved for some time to come.

Lewis Graham, Law Society Fellow in Law, Wadham College, University of Oxford

(Suggested citation: L. Graham, ‘On Ouster Clauses (Again)’, U.K. Const. L. Blog (23rd November 2023) (available at https://ukconstitutionallaw.org/))

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