Thinking Again About Ouster Clauses: R (Privacy International) v Foreign and Commonwealth Secretary [2017] EWCA Civ 1868

The orthodoxy in English administrative law circles is that ouster clauses are unlikely ever to be effective. The underlying logic of the majority of the House of Lords in the landmark case of Anisminic v Foreign Compensation Commission [1969] 2 AC 147 is that an ouster clause does not protect an unlawful decision from judicial oversight — a “determination” tainted by an error of law was only a purported “determination” and thus fell outside the protection of a clause providing that any “determination” of the Commission could not be called into question in the courts. With unlawfulness being given an ever-wider scope by the English courts, it seems almost impossible to craft an ouster clause that would unambiguously exclude judicial review on all of the many grounds of review. This is underpinned by a desire (for rule-of-law and/or separation-of-powers reasons) to ensure judicial oversight of the legality of administrative action.

Yet this orthodoxy — to which, I must confess, I consider myself an adherent — must be called into question by the unanimous decision of the Court of Appeal in R (Privacy International) v Foreign and Commonwealth Secretary [2017] EWCA Civ 1868, penned by a highly respected public lawyer (Sales LJ), that judicial oversight of the Investigatory Powers Tribunal has been successfully ousted by s. 67(8) of the Regulation of Investigatory Powers Act 2000:

determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.

There are three points to make.

First, although Dinah Rose QC, counsel for Privacy International, submitted that in order to oust judicial review, the clause would have to refer explicitly to “determinations and purported determinations” (at para. 22), the effectiveness of s. 67(8) is not wholly a matter of semantics.

On the one hand, it falls to be interpreted in the light of fundamental constitutional principles, one of which is that individuals should be able to access an independent and impartial tribunal to assess the lawfulness of official conduct — the implication is that any clauses purporting to deprive the courts of their judicial review jurisdiction should be narrowly construed (at para. 19), because they make “a substantial inroad upon usual rule of law standards in this jurisdiction” (at para. 25).

On the other hand, s. 67(8) has to be interpreted in the context of the statutory scheme in which it is found. Although Sales LJ took the view that the language of s. 67(8) was “materially different” from the language at issue in Anisminic, he also found the “context for the two provisions” to be “materially different” (at para. 33). Sales LJ considered that there were a number of “linguistic points” in favour of giving a broad scope to s. 67(8), given that the clause refers not just to “determinations” but also to “awards and other decisions” and to “decisions as to…jurisdiction” (at para. 42). Yet within the ‘linguistic’ analysis, one finds references to the broader context of the statutory scheme, such as the “fair inference” that Parliament took the view that the Tribunal “can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it” (at para. 38. See also the reference in para. 40 to the background public law context). And the ‘linguistic’ analysis was “strongly supported” by an appreciation of the context:

It is clear that Parliament’s intention in establishing the IPT and in laying down a framework for the special procedural rules which it should follow…was to set up a tribunal capable of considering claims and complaints against the intelligence services under closed conditions which provided complete assurance that there would not be disclosure of sensitive confidential information about their activities (at para. 42).

Second, the nature and functions of the Tribunal are of central importance to interpreting the ouster clause in s. 67(8). Robert Craig has suggested that the distinction between Anisminic and Privacy International lies in the distinction between the functions of the two decision-makers, the “executive” function of allocating resources in Anisminic, the “judicial” function of overseeing the work of the intelligence services in Privacy International.

Whatever about the merits of this distinction (the Foreign Compensation Commission boasted some illustrious members, after all), Craig makes an important point about the nature of the Tribunal, one which resonated with Sales LJ, who noted how “[t]he quality of the membership of the IPT in terms of judicial expertise and independence is very high…” (at para. 38). The Tribunal is a highly competent, independent and impartial body that reviews the legality of the work of the intelligence services. Accordingly, the scenario envisaged by s. 67(8) is very different from one in which the effect of an ouster clause would be to shield a first-instance decision from any independent oversight at all. Ouster clauses are generally disfavoured because they immunise decisions from any review at all, which is not the case here. As Thomas Fairclough has put it, “the rule of law is not threatened when an independent judicial body is at work…”

Third, the objective of vesting this reviewing role in the Tribunal (rather than, as would presumptively be the case, in the High Court) was to ensure that sensitive material relating to operations conducted by the intelligence services, or to facts about individuals, would not be disclosed in open court. The stakes here are high: “Human sources, such as informers, might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed” (at para. 7). Interpreting s. 67(8) too narrowly would, as Sales LJ explained, “subvert it”:

It would mean that despite the elaborate regime put in place to allow the IPT to determine claims against the intelligence services in a closed procedure while guaranteeing that sensitive information about their activities is not disclosed, judicial review proceedings could be brought in which no such guarantee applied (at para. 43).

I am not sure that it would beyond the abilities of High Court judges and the parties appearing before them to ensure that sensitive information relevant to judicial review proceedings would enter the public domain, but there is no doubt that the Rules under which the Tribunal operates are much firmer on non-disclosure than the general principles applied by the courts in similar circumstances (see paras. 8-10). This forms part of the context against which s. 67(8) falls to be interpreted.

Although I was sceptical about the Divisional Court’s decision (see my post here), it seems — with apologies to all good Bayesians — that it is time for me to update my priors: maybe this is a scenario in which an ouster clause should be held to be effective.

This content has been updated on January 10, 2018 at 16:29.