Ouster Clauses: Definition, Impact, Review

Introduction

Ouster clauses, sometimes called privative clauses, are statutory provisions that seek to bar or narrow court review of decisions made by public bodies, tribunals, or regulators. They raise a central constitutional issue: the balance between parliamentary sovereignty (Parliament can make or unmake any law) and the rule of law (public bodies must act within the law and be open to scrutiny).

For such clauses to bite, Parliament must use clear and direct words. Even then, courts usually read them strictly to preserve access to justice and ensure public authorities act lawfully. This guide explains what ouster clauses are, how courts approach them, the leading cases, and how to apply these points in study and practice.

What You'll Learn

• What ouster clauses are and the forms they take (total, partial, and time‑limit clauses)
• Why public bodies seek finality clauses and how courts respond
• How the courts treat errors of law after Anisminic
• The principle of legality and the need for clear words to exclude review
• Key cases: Anisminic, Privacy International, Smith v East Elloe, Evans, and Jackson
• Practical steps for problem questions and advising clients, including recent statutory reforms affecting “Cart” judicial reviews

Core Concepts

What Is an Ouster Clause?

An ouster clause is a statutory provision that attempts to prevent courts from questioning a decision. Typical wordings include:

• “A determination shall not be called into question in any court.”
• “The decision is final.”
• “No decision shall be subject to appeal or review.”

Common forms:

• Total ouster: seeks to exclude all court oversight.
• Partial ouster: allows only limited review (for example, on jurisdiction or bad faith).
• Time‑limit ouster: allows challenges only within a short period (for example, six weeks), after which the decision stands.

The stronger the clause, the clearer Parliament’s words must be. Courts will not infer the removal of judicial review from general language.

Why Do They Exist?

Public bodies deal with large volumes of decisions, especially in areas such as immigration, social security, and compensation schemes. Ouster clauses aim to:

• Create finality and reduce repeated litigation
• Save time and costs in high‑volume systems
• Support administrative schemes that operate to tight timetables

However, the courts have long maintained that speed and efficiency cannot come at the price of legality and fairness.

Errors of Law and the Anisminic Effect

In Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the House of Lords held that an apparent determination made with an error of law was not a lawful determination at all. In short:

• A decision infected by an error of law is a nullity.
• An ouster clause that shields only “determinations” does not protect something that is not a lawful determination.

This approach blunted the force of many ouster clauses. The older distinction between “jurisdictional” and “non‑jurisdictional” errors largely gave way to a broader principle: most legal errors can be treated as going to legality in a way that keeps the door to review ajar.

The Principle of Legality and Clear Words

The principle of legality requires Parliament to use clear and specific language if it intends to limit basic constitutional principles such as access to the courts. Key points:

• Courts presume Parliament does not intend to oust review unless it uses unmistakable words.
• If two readings are available, the court favours the one that preserves review.

In R (Evans) v Attorney General [2015] UKSC 21, the Supreme Court insisted on clear, exact words before giving effect to a ministerial override that cut across established constitutional norms. The case was not an ouster clause in the classic form, but it is often cited for the strict approach to clear words.

Parliamentary Sovereignty and the Rule of Law

Ouster clauses highlight the relationship between Parliament and the courts:

• Parliament can legislate to curtail review, but it must do so plainly.
• Courts guard access to justice and lawfulness through strict interpretation.

In R (Jackson) v Attorney General [2005] UKHL 56, several Law Lords remarked that the rule of law enforced by the courts is a controlling factor in our constitutional order. While these were comments rather than the ratio, they reflect the courts’ stance when reading provisions that restrict review.

Modern Legislative Responses

Case law has encouraged tighter drafting. Recent reforms include the Judicial Review and Courts Act 2022, which introduced a statutory bar on most challenges to Upper Tribunal refusals of permission to appeal (so‑called Cart judicial reviews), subject to narrow exceptions. This shows Parliament can narrow review where it states the limits with precision.

Key Examples or Case Studies

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

• Context: The statute said determinations of the Commission “shall not be called in question in any court of law.”
• Holding: A decision based on an error of law is a nullity and so not a true “determination.” The clause did not shield unlawful decisions.
• Takeaway: Errors of law keep review alive even where the statute uses very strong language.

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

• Context: RIPA 2000 stated that IPT decisions, “including decisions as to whether they have jurisdiction,” could not be questioned in any court.
• Holding: A majority held that, despite the strength of the wording, the courts could review for legal error. The clear‑words rule applies with real force where access to the courts is at stake.
• Takeaway: Parliament must use the clearest possible language if it truly intends to exclude review for legal error.

Smith v East Elloe Rural District Council [1956] AC 736

• Context: A six‑week time limit barred challenges to a compulsory purchase order after that period.
• Holding: The House of Lords upheld the time‑limit ouster even where allegations of bad faith were raised.
• Takeaway: Courts are often readier to accept strict time limits than blanket bans, provided the time window is real and accessible.

R (Evans) v Attorney General [2015] UKSC 21

• Context: A ministerial certificate sought to override a judicial decision under the Freedom of Information Act 2000.
• Holding: The Supreme Court required clear and exact statutory authority before accepting a power that cut across basic constitutional principles.
• Takeaway: The clear‑words rule protects the rule of law beyond classic ouster clauses.

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

• Context: The Supreme Court allowed very limited review of Upper Tribunal permission decisions (the “second appeals” criteria).
• Later development: Parliament responded with the Judicial Review and Courts Act 2022, which significantly restricts such challenges with defined and narrow exceptions.
• Takeaway: Parliament can narrow review, but must spell out the scope and exceptions with care.

Practical Applications

• Read the exact words

  • Identify whether the clause is total, partial, or a time‑limit bar.
  • Ask whether it targets “decisions/determinations,” “appeals,” or “jurisdiction” questions.

• Classify the alleged error

  • Errors of law, including misinterpreting the statute or ignoring mandatory procedures, often render a decision unlawful.
  • After Anisminic, most legal errors can be treated as going to legality in a way that avoids the ouster.

• Check for alternative routes

  • Is there a statutory appeal on a point of law?
  • Is internal review available?
  • Would a claim for a declaration or injunction be more suitable?

• Assess time limits and remedies

  • For judicial review, comply with CPR Part 54 and the promptness requirement (and the three‑month longstop).
  • Where a statute imposes a short window (for example, six weeks), diarise immediately.

• Use the principle of legality

  • If the text is ambiguous, prefer the reading that preserves access to the courts.
  • Where Parliament truly intends to bar review for legal error, it must say so in direct and exact terms.

• Gather the facts carefully

  • Was the body acting within its statutory powers?
  • Were mandatory procedures followed?
  • Is there evidence of unfairness, bad faith, or fettering of discretion?

• Be realistic about risk and cost

  • Weigh the prospects where a time‑limit ouster has expired.
  • Consider pre‑action correspondence to narrow issues and test the public body’s stance.

• For public bodies drafting or applying schemes

  • Ensure procedures are lawful and reasons are clearly recorded.
  • If relying on a finality clause, confirm decisions fall within statutory powers and that decision‑makers have considered relevant matters.

Summary Checklist

• Identify the type of ouster clause (total, partial, or time‑limit).
• Read the exact statutory words: courts require clarity to exclude review.
• Apply Anisminic: an error of law often makes a decision a nullity.
• Consider Privacy International: even strong wording may not shut out review for legal error.
• Treat time‑limit ousters seriously (see Smith v East Elloe).
• Use the principle of legality: prefer readings that preserve access to the courts unless Parliament is explicit.
• Look for statutory appeals or internal review routes.
• Comply with judicial review time limits and pre‑action steps.
• Frame grounds clearly: statutory interpretation, fairness, relevant/irrelevant considerations, improper purpose.
• Note recent reforms (Judicial Review and Courts Act 2022) that curtail certain reviews with defined exceptions.

Quick Reference