Legislative Scrutiny: Judicial Review and Courts Bill Contents

Chapter 4: Ouster clauses

42.An ouster clause is a clause in legislation which seeks to deny, or ‘oust’, the courts’ supervisory jurisdiction over the exercise of public power. This means that the subject matter of the ouster clause cannot be challenged in the courts. Given the constitutional importance of the court’s supervisory jurisdiction, the courts will assume that Parliament does not intend to exclude all judicial review unless the statutory language introducing an ouster clause is absolutely clear. Viscount Simmonds elucidated this principle in Pyx Granite, where he said:

It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.51

43.The proposal to reverse Cart in Clause 2 is an ouster clause, drafted in clear terms, although one that has a limited focus and is not absolute. The use of ouster clauses, whatever the case may be for administrative efficiency, raises significant concerns as it directly prevents people being able to vindicate their rights before the courts. The IRAL cautioned against their use and argued “that there should be highly cogent reasons for taking such an exceptional course.”52

44.The end of the Government’s press release for the Bill states that “it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”53 The former Lord Chancellor, Robert Buckland, has been reported as saying that he is interested not only in ouster clauses in the context of Cart, but also “what it may point the way to”: “this is a template or prototype […] each time this is considered it will be very carefully calibrated based upon a specific context.”54

45.The Government states that ouster clauses are “a reassertion of parliamentary sovereignty, acting as a tool for Parliament to determine areas which are better for political rather than legal accountability,” rather than an attempt to avoid scrutiny of government action.55

46.However, any attempt to limit the jurisdiction of the courts to review the lawfulness of executive action has significant implications for the rule of law and for Parliament’s own powers. This is because the courts’ constitutional role is to enforce the law as set out by Parliament. As Lord Justice Laws put it in his judgment when the case of Cart was heard by the Court of Appeal:

[…] the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it […] The requirement of an authoritative judicial source for the interpretation of law means that Parliament’s statutes are always effective […]56

47.Our submission to the IRAL panel expressed concern about the use of ouster clauses, arguing that they:

[…] risk creating a category of laws which the Government could breach without consequence. It would reduce a crucial check on executive action and undermine the principle that the law applies equally to the Government as it does to everyone else.57

48.We are concerned by the Government’s indication that the ouster clause designed to reverse Cart will be replicated in other legislation. The extensive use of ouster clauses will diminish the ability of judicial review to challenge executive action and expose unlawfulness. This has the potential to undermine the rule of law, which is essential for the protection and enforcement of human rights.

51 Pyx Granite Co. Ltd v Ministry of Housing and Local Government [1960] AC 260, para 286

53 Ministry of Justice, New Bill hands additional tools to judges, 21 July 2021

54 Monidipa Fouzder, New focus: Judicial Review and Courts Bill - bigger reforms on the horizon?, The Law Society Gazette, 26 July 2021

55 Ministry of Justice, Judicial Review Reform - consultation, CP 408, March 2021, para 86

56 [2011] QB 120, para 38

Published: 7 December 2021 Site information    Accessibility statement