In the United Kingdom Total ouster clauses, also known as finality clauses, seek to completely exclude the supervisory jurisdiction of the courts. In the United Kingdom, before the seminal decision of
Anisminic Ltd v Foreign Compensation Commission (1968), the law drew a distinction between situations where the public body was acting within the powers conferred on it by law but committed an error of law (a "non-jurisdictional error of law"), and situations where the commission of the error of law meant that the public body did not in fact have power to act (a "jurisdictional error of law"). In the former situation, a total ouster clause precluded the courts from exercising their supervisory function and issuing any
prerogative orders to quash the erroneous action. The courts could only step in if the error of law affected the jurisdiction of the public body to act, for example, if the public body erroneously interpreted the scope of the powers conferred upon it, and thus made a decision which it had no power to make. In
R v Medical Appeal Tribunal, ex parte Gilmore (1957), was doubted by the
Court of Appeal of England and Wales, which issued a
certiorari (which would today be called a quashing order) against the Medical Appeal Tribunal for an error of law on the face of the record.
Lord Justice of Appeal Alfred Denning stated that the words "any decision of a claim or question ... shall be final" only excluded an appeal but not judicial review: In
Anisminic, the
House of Lords effectively held that any error of law made by a public body will render its decision a nullity, and an ouster clause does not oust the courts' jurisdiction in judicial review unless it clearly states so. The
Foreign Compensation Commission had misinterpreted certain
subsidiary legislation, with the effect that almost all claims for foreign compensation would be defeated. Their Lordships held that this misconstruction of the legislation rendered the decision
ultra vires, and since Parliament could not have intended for the ouster clause to protect an
ultra vires determination, judicial review was not precluded. Though
Anisminic did not expressly abolish the distinction between jurisdictional and non-jurisdictional errors of law, in
R v Lord President of the Privy Council, ex parte Page (1992) the House of Lords noted that: Thus, in
English law all errors of law are now to be considered as jurisdictional and
ultra vires in a broad sense of the term. This implies that ouster clauses should not be effective against any error of law. The
Anisminic principle was upheld by the
Supreme Court in both
R (on the application of Cart) v Upper Tribunal (2011) and
R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] so that the
rule of law is promoted, among other reasons. Since it is practically immaterial to the victim of an error of law whether it is a jurisdictional error or otherwise, it would be manifestly unjust if judicial review was precluded when a non-jurisdictional error was egregious and obvious, but allowed for a small jurisdictional error.
Exceptions Though the scope of judicial review has been expanded considerably following
Anisminic, there are still a number of exceptions where total ouster clauses preclude courts from exercising their supervisory function in a judicial review.
Courts of law The
Anisminic principle applies only to public bodies exercising executive functions, over which the courts can exercise their supervisory role and have the power to decide
questions of law. However, superior courts do not have any supervisory function in relation to inferior courts of law, because Parliament is deemed to have intended that such courts are to be final arbiters of questions of law. Whether the decision of a court of law is final and not subject to judicial review depends on a construction of the statute defining the jurisdiction and powers of the court. In
Re Racal Communications Ltd (1980),
Lord Diplock noted that if a statute provides that the court's decision should be final and conclusive, the "subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not" survive. Hence, any non-jurisdictional errors of law made by a court can be only corrected by appeal if the statute provides for it.
Internal regulations It was held in
Page Comprehensive tribunal system to correct errors of law is based. In a 2011 judgment, the
UK Supreme Court held that not all decisions of the Upper Tribunal are subject to judicial review. Another exception can be found in the
Cart On the facts of the case, he found it was neither proportionate nor necessary for the maintenance of the rule of law to require unrestricted judicial review. By enacting the
Tribunals, Courts and Enforcement Act 2007,
Parliament had rationalized the system of administrative tribunals and had created the
Upper Tribunal to hear appeals from lower tribunals, thus avoiding the ordinary courts from being overwhelmed by judicial review applications. As the system of tribunals provided ample opportunity for the correction of errors of law, this substantive policy reason precluded the need for all decisions of the Upper Tribunal to be subject to judicial review. Thus, judicial review would only be permitted from an Upper Tribunal decision if it would "raise some important point of principle or practice" or there was "some other compelling reason".
In other jurisdictions As the United Kingdom does not have a written
constitution and observes the doctrine of
parliamentary supremacy, the courts there could not render an ouster clause ineffective due to inconsistency with a constitutional provision, but instead excluded its application in some cases under the
common law doctrine of the rule of law. However, in jurisdictions with a written constitution and hence constitutional supremacy, the courts can exclude the application of ouster clauses by pronouncing that the provision is unconstitutional and thus null and void.
Australia The
High Court of Australia has shown resistance to privative clauses, holding that the ability of legislatures to insulate administrative tribunals from judicial review by means of such clauses is restricted by the
Constitution of Australia, particularly section 75(v) which states: There is a further presumption in construing privative clauses that Parliament did not intend to limit access to the courts. In the High Court decision
R v Hickman, ex parte Fox (1945), Justice
Owen Dixon said: Thus, a privative clause does not prevent the High Court from exercising judicial review if an authority has failed to exercise power in a
bona fide manner, or if the action taken or decision made is irrelevant to the subject manner of the legislation or does not come within the power conferred on the authority. a clause will not be unconstitutional if it has the effect of altering the procedural or substantive law that the court must apply
India held in a 1980 case that
judicial review is part of the
basic structure of the
constitution India embraces the
basic structure doctrine, which states that the basic structure or features of the
constitution may not be amended. Judicial review has been regarded as a basic feature since the case of
Minerva Mills v. Union of India (1980), the
Supreme Court expressing the following view: The parliament's "power to destroy is not a power to amend", and hence the power of judicial review may not be abrogated either by the ordinary process of legislation or through the procedure of constitutional amendment. Therefore, it might be argued that ouster clauses, which are intended to make decisions by public authorities and other decision-makers final and unchallengeable before the courts, should be held void and ineffective as they deprive the aggrieved party of an avenue of seeking judicial review. However, it was held in
A. B. C. Laminart Pvt. Ltd. v A. P. Agencies, Salem (1989) that where there are two or more courts with jurisdiction over a matter, and an ouster clause merely limits the jurisdiction to one particular court, the ouster clause is valid as the aggrieved party is still left with an avenue to proceed with his or her claim:
Singapore buildings in Singapore. The effectiveness of ouster clauses in this jurisdiction is still unclear. In Singapore, the state of the law regarding the effectiveness of ouster clauses is still unclear. Whereas in the United Kingdom the courts have abolished the distinction between non-jurisdictional and jurisdictional errors of law and affirmed that in general ouster clauses are ineffective against errors of law, Singapore cases seem to adopt the traditional pre-
Anisminic approach. The distinction between jurisdictional and non-jurisdictional errors of law and the effectiveness of ouster clauses against non-jurisdictional errors of law is exemplified by the cases of
Re Application by Yee Yut Ee (1978), and
Stansfield Business International Pte. Ltd. v. Minister for Manpower (1999). In
Yee Yut Ee, the High Court neither expressly rejected nor affirmed the abolition of the distinction between jurisdictional and non-jurisdictional errors of law in
Anisminic and its effect on the effectiveness of ouster clauses. Instead, the court cited UK authorities holding that ouster clauses are ineffective when there has been an absence of jurisdiction or an excess of jurisdiction on the part of the decision-maker, which was the legal position prior to
Anisminic. Although the court did refer to
Anisminic, it did so only to observe that the House of Lords had held the ouster clause involved in that case to be irrelevant because a purported determination by the Foreign Compensation Commission which was legally incorrect could not be considered a real determination and had no effect at all. Ultimately, the court quashed the order made by the Industrial Arbitration Court because it contained an error of law which had caused that court to exceed its jurisdiction. In
Stansfield, an employee of the plaintiff alleged that he had been
dismissed from his employment without just cause, and made representations to the
Minister of Manpower to be reinstated. The Minister agreed with the employee and recommended that the plaintiff provide him with monetary compensation. Even though section 14(5) of the Employment Act states that any decision of the Minister is "final and conclusive, and shall not be challenged in any court of law", the plaintiff challenged the decision by applying to the High Court for judicial review by way of
certiorari. In the course of its judgment, the court cited the following passage from
South East Asia Fire Bricks Sdn. Bhd. v Non-Metallic Mineral Products Manufacturing Employees Union (1980): It is presently not known whether Singapore courts will eventually adopt the current legal position in the United Kingdom.
Chief Justice Chan Sek Keong observed during a 2010 lecture that what the High Court said about
Anisminic in
Stansfield was
obiter dicta because the actual decision was "based on a breach of natural justice and not the doctrine of error of law". The court had concluded that the ouster clause was ineffective in preventing judicial review of the minister's decision, as the plaintiff had not been given a fair opportunity to present its case with knowledge of the opponent's allegations. Chief Justice Chan also advanced an academic argument that ouster clauses might be viewed as being contrary to Article 93 of the
Constitution of Singapore, which vests the judicial power of Singapore in the courts, because ouster clauses strip the
Supreme Court of its supervisory jurisdiction over inferior tribunals and other public authorities. If the argument that the supervisory jurisdiction of the courts cannot be ousted holds, there is no need to distinguish between jurisdictional and non-jurisdictional errors of law. However, he made it clear that he was not expressing an opinion on the issue. Following the Indian example, it might be argued that judicial review is a basic feature of the Constitution and cannot be removed through the use of ouster clauses. However, the basic features doctrine was rejected by the
High Court in
Teo Soh Lung v Minister for Home Affairs (1989). On appeal, the
Court of Appeal found it unnecessary to rule on whether the position taken by the High Court is correct or not.
United States ==Partial ouster clauses==