The Quartet: Ouster Clauses Inside and Out

I, along with Jake Rylatt (No 5 Chambers), will be presenting a paper on ouster clauses at an SLS seminar to be held at the University of Sussex. The seminar celebrates the famous “quartet” of cases in judicial review. Details of the event are available here.

The abstract for our paper is as follows:

The landmark case of Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 remains the public law touchstone on ouster clauses in the UK. On that case’s fiftieth anniversary, it is appropriate to consider the use and treatment of ouster clauses since that landmark judgment. This paper offers two perspectives on ouster clauses. The first is the ‘extra- agency’, or ‘external’, perspective. Put simply, this is the perspective of the courts (as a review body outside of the administrative agencies that propose ouster clauses). From an examination of court decisions and publicised extra-judicial activities, it is clear that the external view is characterised by a strong hostility towards the use of ouster clauses. However, the external position has never really been clearly settled and recent cases, such as R (Privacy International) v Investigatory Powers Tribunal [2017] EWHC 114 (Admin), are demonstrative of a lingering tension in this area. This tension remains because ouster clauses, from an extra-agency perspective, present a clash between the foundational constitutional principles of the Rule of Law and Parliamentary sovereignty. The second perspective is the ‘intra-agency’, or ‘internal’, view. This perspective is the view of executive officers (including Ministers and administrators), and it is often completely neglected in the public law debate around ouster clauses. It is perhaps more difficult, without empirical investigation, to establish an understanding of the internal perspective. However, it is quite clear from the facts of Anisminic itself and developments since, that executive officers have, from time to time, come across a problem about which they think ousting judicial review is the answer. From looking at case studies of where ouster clauses have been proposed, it becomes clear that the intra-agency perspective is characterised by a reluctance, rather than hostility, to use ousters. This gap between the internal and external perspective arises because, instead of seeing ouster clauses through the prism of constitutional principle, executive officers are more likely to look at ouster clauses as a system management issue, especially in terms of distributing available resources within the justice system. We conclude this paper by considering how the internal perspective may relate to discussions on the legality of ouster clauses.