<<

. 129
( 155 .)



>>

Mike Tyson, a convicted rapist, into the United Kingdom so that he could take
part in a boxing match in Glasgow). For criticism of the narrowness of the Scots
law approach, see Lord Hope [2001] PL 294.
695 The courts: judicial review and liability


(c) Ouster clauses
Statutes have sometimes provided expressly for the exclusion of judicial review.
Such ˜ouster™ or ˜privative™ clauses are strictly construed by the courts in order
to preserve, to the fullest possible extent, the right of the citizen to challenge
the legality of action a¬ecting his or her interests. A particularly strong judi-
cial counterstroke was delivered in Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147, in which the House of Lords was confronted by
a statutory provision that the ˜determination™ by the Commission of any appli-
cation made to it under the Act ˜shall not be called in question in any court of
law™. It was held that an error of law made by the Commission in rejecting an
application had the result that its purported determination was a nullity and
that the court was not prevented from granting a declaration to that e¬ect,
for ˜determination™ must be construed to mean a determination which the
Commission, directing itself correctly in law, had power to make and not a pur-
ported determination which lay outside its powers. This construction of the
statutory ouster provision drained it of practical e¬ect.
Ouster provisions will ordinarily be ine¬ective to exclude judicial review, not
only when the decision under challenge resulted from an error of law (as in
Anisminic), but further when the decision is a nullity by reason of ˜any other
error which would justify the intervention of the court on judicial review
including a breach of the requirements of fairness™ (Lord Woolf MR in R v
Secretary of State for the Home Department, ex p Fayed [1998] 1 WLR 763, 771).
Fayed™s case was itself one in which the ouster provision there in question, that
the decision of the Secretary of State on an application for naturalisation ˜shall
not be subject to appeal to, or review in, any court™ (British Nationality Act 1981,
s 44(2)), was held not to a¬ect ˜the obligation of the Secretary of State to be fair
or . . . interfere with the power of the court to ensure that requirements of fair-
ness are met™ (at 774).
Some ouster clauses, instead of taking the Anisminic form, are more limited
in scope, expressly allowing questions of invalidity to be raised in court in a pre-
scribed time and manner and on speci¬ed grounds. Such clauses are commonly
in the form exempli¬ed by the Wildlife and Countryside Act 1981. Section 53
of this Act obliges county councils to keep under review the de¬nitive maps
of public rights of way prepared for their areas and to make by order
such modi¬cations of the map as are required by, for example, new evidence
of rights of way. Schedule 15 to the Act says that notice must be given when an
order is made and makes provision for the hearing of objections and
con¬rmation of the order by the Secretary of State. Paragraph 12 of the
Schedule provides:

(1) If any person is aggrieved by an order which has taken effect and desires to question
its validity on the ground that it is not within the powers of section 53 . . . or that any of the
requirements of this Schedule have not been complied with in relation to it, he may within
696 British Government and the Constitution


42 days from the date of publication of the notice [of confirmation of the order] make an
application to the High Court under this paragraph.
(2) On any such application the High Court may, if satisfied that the order is not within
those powers or that the interests of the applicant have been substantially prejudiced by
a failure to comply with those requirements, quash the order . . .
(3) Except as provided by this paragraph, the validity of an order shall not be questioned
in any legal proceedings whatsoever.


Here the machinery of application to the High Court is intended to provide an
exclusive remedy and the privative clause in paragraph 12(3) is e¬ective to
prevent challenge at any other stage “ for instance, while the procedure for
objections, hearings and con¬rmation is taking place or after the forty-two-day
time limit “ by judicial review. (R v Cornwall County Council, ex p Huntington
[1994] 1 All ER 694. See also R v Secretary of State for the Environment, ex p
Ostler [1977] QB 122.) Clauses of this kind take account of the requirements of
administrative convenience and e¬ciency without denying relief to aggrieved
persons, though the time limit for challenge is often unduly short.
On the Government™s (mainly unsuccessful) attempt to introduce an extra-
ordinarily wide-ranging ouster clause in the Asylum and Immigration
(Treatment of Claimants etc) Act 2004, and on the stringent criticism it
attracted, see above, p 67 and see further Woolf (2004) 63 CLJ 317 and Rawlings
(2005) 68 MLR 378.


(d) Judicial review of prerogative powers
It was formerly held that while the courts could determine the existence and
extent of any prerogative, and whether its use had been restricted by statute
(above, pp 467“72), they might not question or review the grounds on which,
in a particular case, a prerogative power had been exercised. Judges in a number
of cases disclaimed competence to review prerogative acts, as when Lord
Denning MR said in Blackburn v A-G [1971] 1 WLR 1037, 1040 that ministers
in negotiating and signing a treaty: ˜exercise the prerogative of the Crown. Their
action in so doing cannot be challenged or questioned in these courts™. On
the other hand, there were indications in the case law that judicial review
was not wholly excluded, as when Lord Devlin, in Chandler v DPP [1964]
AC 763, 810, equated prerogative with other discretionary powers, saying that
the courts could intervene to correct ˜excess or abuse™. In R v Criminal Injuries
Compensation Board, ex p Lain [1967] 2 QB 864, a case subsequently marked as
a turning point, it was held by the Divisional Court that the actions of a public
body set up by the Government “ under the prerogative, as the court saw it “ to
make awards of compensation to victims of criminal o¬ences could be the
subject of judicial review. It remained for the House of Lords to put the law on
a new basis in the GCHQ case.
697 The courts: judicial review and liability


Council of Civil Service Unions v Minister for the Civil Service
(the ˜GCHQ™ case) [1985] AC 374 (HL)
In 1983 the Prime Minister (as Minister for the Civil Service) issued an instruc-
tion that the conditions of service of civil servants employed at Government
Communications Headquarters (GCHQ), a military and signals intelligence
centre, should be revised so as to exclude the right of trade union membership.
The instruction was given under article 4 of the Civil Service Order in Council
1982, an Order made by virtue of what was assumed by the court to be a pre-
rogative power, that of regulating the conduct of the civil service. The minister™s
action was taken without prior consultation with trade unions representing
sta¬ at GCHQ.
The unions applied for judicial review, seeking a declaration that the instruc-
tion was invalid. They argued that the prerogative power to vary the terms and
conditions of employment of civil servants was subject to review by the courts,
and further that the GCHQ sta¬ had a legitimate expectation, arising from
a well-established practice of consultation before their conditions of service
were altered, that the minister would not make such an alteration without ¬rst
consulting the sta¬ or their trade union representatives.
Glidewell J accepted these arguments and granted a declaration that the
instruction was invalid. The Court of Appeal set aside the declaration and the
unions appealed to the House of Lords. There it was argued for the minister
that the instruction was not open to review because the power to issue it had its
source in the prerogative. This argument was rejected by all of their Lordships.
Lords Fraser and Brightman were persuaded to this conclusion because the
power exercised in this case had been delegated to the minister by the prero-
gative Order in Council and it must be an implied condition of any such
delegation that the power should be exercised fairly “ a matter appropriate for
review. The majority, on the other hand, were of the opinion that even a direct
exercise of prerogative power was in principle reviewable:

Lord Scarman: . . . I believe that the law relating to judicial review has now reached the stage
where it can be said with confidence that, if the subject matter in respect of which preroga-
tive power is exercised is justiciable, that is to say if it is a matter upon which the court can
adjudicate, the exercise of the power is subject to review in accordance with the principles
developed in respect of the review of the exercise of statutory power. Without usurping the
role of legal historian, for which I claim no special qualification, I would observe that the royal
prerogative has always been regarded as part of the common law, and that Sir Edward Coke
had no doubt that it was subject to the common law: Prohibitions del Roy (1607) 12 Co Rep
63 and the Proclamations™ Case (1611) 12 Co Rep 74. In the latter case he declared, at p 76,
that ˜the King hath no prerogative, but that which the law of the land allows him™. It is,
of course, beyond doubt that in Coke™s time and thereafter judicial review of the exercise of
prerogative power was limited to inquiring into whether a particular power existed and, if
it did, into its extent: Attorney General v De Keyser™s Royal Hotel Ltd [1920] AC 508. But
698 British Government and the Constitution


this limitation has now gone, overwhelmed by the developing modern law of judicial
review. . . . Just as ancient restrictions in the law relating to the prerogative writs and orders
have not prevented the courts from extending the requirement of natural justice, namely the
duty to act fairly, so that it is required of a purely administrative act, so also has the modern
law . . . extended the range of judicial review in respect of the exercise of prerogative power.
Today, therefore, the controlling factor in determining whether the exercise of prerogative
power is subject to judicial review is not its source but its subject matter.

Lord Diplock: . . . It was the prerogative that was relied on as the source of the power of
the Minister for the Civil Service in reaching her decision of 22 December 1983 that
membership of national trade unions should in future be barred to all members of the home
civil service employed at GCHQ.
My Lords, I intend no discourtesy to counsel when I say that, intellectual interest apart, in
answering the question of law raised in this appeal, I have derived little practical assistance
from learned and esoteric analyses of the precise legal nature, boundaries and historical origin
of ˜the prerogative™, or of what powers exercisable by executive officers acting on behalf of
central government that are not shared by private citizens qualify for inclusion under this par-
ticular label. It does not, for instance, seem to me to matter whether today the right of the
executive government that happens to be in power to dismiss without notice any member of
the home civil service upon which perforce it must rely for the administration of its policies,
and the correlative disability of the executive government that is in power to agree with a
civil servant that his service should be on terms that did not make him subject to instant dis-
missal, should be ascribed to ˜the prerogative™ or merely to a consequence of the survival, for
entirely different reasons, of a rule of constitutional law whose origin is to be found in the
theory that those by whom the administration of the realm is carried on do so as personal
servants of the monarch who can dismiss them at will, because the King can do no wrong.
Nevertheless, whatever label may be attached to them there have unquestionably survived
into the present day a residue of miscellaneous fields of law in which the executive govern-
ment retains decision-making powers that are not dependent upon any statutory authority
but nevertheless have consequences on the private rights or legitimate expectations of other
persons which would render the decision subject to judicial review if the power of the
decision-maker to make them were statutory in origin. From matters so relatively minor as
the grant of pardons to condemned criminals, of honours to the good and great, of corporate
personality to deserving bodies of persons, and of bounty from moneys made available to
the executive government by Parliament, they extend to matters so vital to the survival and
welfare of the nation as the conduct of relations with foreign states and “ what lies at the
heart of the present case “ the defence of the realm against potential enemies. . . .
My Lords, I see no reason why simply because a decision-making power is derived from
a common law and not a statutory source, it should for that reason only be immune from
judicial review.

Quali¬cations of the availability of review that are indicated in the above pas-
sages are that the exercise of the prerogative power must relate to a subject
matter that is ˜justiciable™ (Lord Scarman) and must a¬ect the ˜private rights or
699 The courts: judicial review and liability


legitimate expectations of other persons™ (Lord Diplock). Lord Roskill was in
agreement with Lords Scarman and Diplock in being unable to see ˜any logical
reason why the fact that the source of the power is the prerogative and not
statute should today deprive the citizen of that right of challenge to the manner
of its exercise which he would possess were the source of the power statutory™.
He made some additional remarks on the subject of the ˜justiciability™ of the
power:

Lord Roskill: . . . But I do not think that the right of challenge can be unqualified. It must, I
think, depend upon the subject matter of the prerogative power which is exercised. Many
examples were given during the argument of prerogative powers which as at present advised
I do not think could properly be made the subject of judicial review. Prerogative powers such
as those relating to the making of treaties, the defence of the realm, the prerogative of
mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers
as well as others are not, I think, susceptible to judicial review because their nature and
subject matter are such as not to be amenable to the judicial process. The courts are not the
place wherein to determine whether a treaty should be concluded or the armed forces dis-
posed in a particular manner or Parliament dissolved on one date rather than another.


The prerogative power exercised in this case was not of a kind to fall within Lord
Roskill™s ˜excluded categories™ and their Lordships were in agreement that the
minister™s action was in principle open to review. They were also agreed that in
the circumstances the GCHQ sta¬ had, prima facie, a legitimate expectation
that they would be consulted, as on all previous occasions, about the change to
be made to their conditions of service.
It was held, however, that the appellants™ legitimate expectation and the duty
of fairness arising from it were overriden by the requirements of national secu-
rity. The Government claimed that it was on the ground of national security
that the decision had been made to change the conditions of service at GCHQ.
Their Lordships accepted the Government™s claims and, for this reason, held
against the unions. It has been persuasively argued that in coming to this con-
clusion ˜the Law Lords were too easily satis¬ed by some very exiguous evidence™:
Drewry (1985) 38 Parliamentary A¬airs 371, 380. (See further on the GCHQ
case and on other case law concerning national security, chapter 11.)
(There has been extensive commentary on this case and the conclusions of
the Law Lords have attracted criticism on a variety of grounds: particular atten-
tion should be given to the rulings on justiciability and national security. See,
for example, Drewry (1985) 38 Parliamentary A¬airs 371; Ewing [1985] CLJ 1;
Gri¬th [1985] PL 564; Lee [1985] PL 186; Morris [1985] PL 177; Wade (1985)
101 LQR 153; Walker [1987] PL 62.)
The barrier of justiciability erected in the GCHQ case has not foreclosed a
continuing if cautious advance in judicial review of the exercise of prerogative
powers. In R v Secretary of State for Foreign and Commonwealth A¬airs, ex p
Everett [1989] QB 811 it was held by the Court of Appeal that the discretionary
700 British Government and the Constitution


power to issue a passport, considered by the court to belong to the prerogative,
was open to review. It was a matter ˜a¬ecting the rights of individuals and their
freedom of travel™ (per Taylor LJ) and raised issues no less justiciable than those
commonly arising in the courts in immigration cases. In R v Secretary of State
for the Home Department, ex p Bentley [1994] QB 349, the question was whether
the exercise of the prerogative of mercy might in some circumstances be review-
able, notwithstanding the fact that it had been included in Lord Roskill™s cata-
logue of non-justiciable prerogative powers in the GCHQ case. The Divisional
Court concluded that, within limits to be determined from case to case, judicial
review of this prerogative was possible (see, to like e¬ect, Lewis v Attorney
General of Jamaica [2001] 2 AC 50).


4 Conclusion: the advance of judicial review
Recent decades have witnessed a signi¬cant expansion of recourse to judicial
review, of the readiness of the courts to intervene in administrative decision-
making and in the development of the principles of review. In the following
passage Martin Loughlin re¬‚ects upon the tension between the idea of admin-
istration and the idea of law, describing the main perspectives on the nature and
resolution of that tension.


Martin Loughlin, ˜The Underside of the Law: Judicial Review and the
Prison Disciplinary System™ (1993) 46 CLP 23, 25“6

The traditional “ and predominant “ view of administrative law which has emerged in this
country might be labelled the Whig view. [Reference is made here to, inter alios, Dicey, Lord
Hewart, The New Despotism (1929) and Sir William Wade, Administrative Law (6th edn 1988;
see now 9th edn 2004).] It is a view which not only focuses on the centrality of courts in
administrative law but which also views courts as the guardians of liberty. This Whig view is

<<

. 129
( 155 .)



>>