17 Express and implied limits on judicial review: ouster and time limit clauses, the prerogative power, public interest immunity 17.1 Introduction We have already seen that the expansion of judicial review is one conspicuous feature of English administrative law over recent decades. This chapter will, fi rst, be concerned with examining how far is it possible to exclude the jurisdiction of the courts by the careful drafting of objectively worded statutory ouster pro- visions, and by the use of subjective language allowing considerable discretion to the decision-taker. In particular, secondly, we will focus on two areas where implied, rather than express, limits are central: the prerogative power, and the use of public interest immunity by government and other bodies. This is important because, if in advance of any action it is recognised that the exclusion of the courts has been achieved, this is a clear signal to decision-takers that they may operate without fear of intervention by the courts at a later stage. However, judges are aware of their constitutional position, and particularly of the doctrine of the rule of law. The result is that they have been unwilling to permit any subordinate authority to obtain uncontrollable power which would exempt public authorities, or other bodies, from the jurisdiction of the courts, as this would be, theoretically, tantamount to opening the door to potentially dictatorial power. For example, strong opposition was expressed in political, judicial and academic circles to a recent proposal by the government to insert an Ouster Clause in the Asylum and Immigration Bill 2004 which sought to exclude entirely the jurisdiction of the courts in relation to the operation of the Asylum and Immigration Tribunal. The measure was intended to rule out the established grounds of judicial review and by so doing it would have taken away an important constitutional safeguard. In the face of strong resistance, especially in the House of Lords, the government relented and the clause was dropped from the Asylum and Immigration Act 2004. Indeed, the courts have, since the 1960s, made a strong, even, on occasion, rebel- lious, stand against the creation of pockets of power which they hold to be in violation of the rule of law and an abuse of power. Although lawyers appearing for government departments may argue that some Act confers unfettered discretion they are guilty of constitutional blasphemy, for unfettered discretion cannot exist where the rule of law reigns. The same truth can be expressed by saying that all power is capable of abuse, and that the power to prevent abuse is the acid test of effective judicial review. (Wade and Forsyth 2004, p. 35.) LLeyland-Book.indbeyland-Book.indb 339292 99/8/2008/8/2008 99:50:43:50:43 AAMM Express and implied limits on judicial review 393 This is clearly in line with one strongly held view of the role of the judiciary, work- ing within the parameters set by the constitutional convention of the separation of powers, although a number of judges have historically appeared to agree with the view that the courts should always accede to the wishes of Parliament, or the decisions of ministers, however controversial (see, e.g., Viscount Simonds in Smith v East Elloe Rural District Council [1956] 1 All ER 855, at 17.2.3). However, as differing judicial dicta indicate, the question of how far decisions made by governmental and other administrative bodies should be subject to control by the courts is far from being an uncontroversial one. Ousters, for example, may well be regarded as a use- ful device to keep at bay a conservatively inclined judiciary. Griffi th, articulating the ‘green light’ view (see chapter 1) recognises and encourages the need for spe- cialist bodies to act as adjudicators in certain areas of administration. Considered from this perspective, precisely the same type of ouster restrictions may, with signifi cant qualifi cations, satisfy the desire of administrators for consistency and fi nality in the implementation of policy decisions (Griffi th 1997, pp. 340ff ). It will become apparent as we work through this chapter that this is one area in which the language of the law can become very complex, largely because of his- torical distinctions that were previously made by the courts. We return to some of the corresponding defi nitional issues below (see 17.4), but before beginning our analysis we should clarify one point about use of the term ‘jurisdiction’. In short, judicial review used to fasten upon what may be termed a ‘jurisdictional’ theory of law, whereby the courts spoke of a decision-maker’s ‘jurisdiction’ over a mat- ter as a synonym for what would now be called ‘power’. On this basis, the courts drew a distinction between ‘errors of law that went to jurisdiction’ (essentially, an error about whether the decision-maker had the power it purported to have) and ‘errors of law that were made within jurisdiction’ (i.e. an error that did not take the decision-maker outside the four corners of its power). While errors of law that went to jurisdiction were always subject to judicial control—any other approach would allow a decision-maker to assume for itself power beyond that delegated Parliament—the courts were less willing to intervene in relation to errors within jurisdiction, However, to the extent that the jurisdictional theory limited the reach of review, it should be noted that the courts no longer rely on the old distinction and that they now regard any error of law as reviewable. As will be seen below, this is widely regarded to be the result of the Anisminic case that is often credited with the emergence of ultra vires doctrine that we analysed in chapters 9–16 (Boddington v British Transport Police [1999] 2 AC 143). 17.2 Ouster and time limit clauses 17.2.1 Finality Finality clauses are sometimes inserted in statutes to indicate that the decision of a particular justice or tribunal cannot be challenged by any court. However, there is overwhelming authority, going back 300 years, which suggests that such fi nality clauses will not be recognised by the courts as excluding judicial review. R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574, is regarded as a leading decision LLeyland-Book.indbeyland-Book.indb 339393 99/8/2008/8/2008 99:50:43:50:43 AAMM 394 Express and implied limits on judicial review on this point. Here, the National Insurance (Industrial Injuries) Act 1946, s 36(3), provided that ‘any decision of a claim or question . shall be fi nal’. The applicant sought the remedy of certiorari (a quashing order) when there had been an error of law on the face of the record (on which see 17.4). Although the remedy was refused in the Divisional Court, it was allowed in the Court of Appeal. Denning LJ held that, while these words may have been enough to exclude an appeal they did not prevent judicial review—‘I fi nd it very well settled that the remedy by certior- ari is never to be taken away by any statute except by the most clear and explicit words’—and he was in no doubt that such a formulation as ‘shall be fi nal’ was not suffi cient to achieve this objective. With regard to ‘no certiorari’ clauses, the case for not readily accepting exclusion is explained persuasively by his Lordship when discussing the effect of old statutes and cases: ‘ . the court never allowed those statutes to be used as a cover for wrongdoing by tribunals. If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end’. Despite express words taking away certiorari, therefore, it was held (in these older cases) that certiorari would still lie if some of the members of the tribunal were disqualifi ed from acting. See also R v Cheltenham Commissioners [1841] 1 QB 467, where Lord Denham CJ noted that, ‘The statute cannot affect our right and duty to see justice executed.’ Similarly, there is well-established authority to suggest that a fi nality clause will be ineffective when there is error which goes to the jurisdiction. For example, in Pearlman v Harrow School [1979] QB 56, the decision of a county court judge on the matter in question was to be ‘fi nal and conclusive’. In addition, the County Court Act 1959, s 107, contained a non-certiorari clause, but this did not apply and prevent the supervisory jurisdiction of the High Court. Moreover, it was suggested, more controversially, in Lord Denning’s obiter remarks in this case, that a fi nality clause may not even exclude more general appeals on points of law. Although ex p Gilmore and Pearlman v Harrow School are concerned with applications for the remedy of certiorari, it should be noted that, whatever remedy is being sought, a fi nality clause will not exclude judicial review when an error is deemed to go to the jurisdiction. 17.2.2 Total ouster clauses and the Anisminic case We shall see below (17.2.3) that the decision in Smith v East Elloe Rural District Council [1956] 1 All ER 855, exemplifi ed a view of time limitation clauses reached towards the end of a recognised period of judicial quietism. In this instance the House of Lords interpreted a statutory provision which limited the court’s juris- diction to review a compulsory purchase order on land so broadly that even fraud by public servants was not considered by the court to entitle the owner to a rem- edy by way of certiorari.