Statutory preclusion of judicial review
Statutory Preclusion of Judicial Review
Statutory preclusion of judicial review occurs when a statute explicitly or implicitly restricts or eliminates the courts’ ability to review decisions made by public authorities or administrative bodies. This means that Parliament, through legislation, can limit the scope or even bar judicial oversight over certain administrative actions or decisions.
Judicial review is a mechanism by which courts oversee the legality, reasonableness, and procedural propriety of administrative decisions. However, Parliament can draft laws that "preclude" this oversight to promote efficiency, finality, or protect sensitive decisions.
Key Points About Statutory Preclusion
Express vs. Implied Preclusion:
Express: The statute clearly states that no judicial review is allowed.
Implied: The statute’s structure or wording suggests judicial review is excluded, even if not explicitly stated.
Parliamentary Sovereignty: Courts respect statutory preclusion unless it violates fundamental rights or constitutional principles.
Exceptions: Courts often protect jurisdictional errors and fundamental procedural fairness, even where preclusion is claimed.
Important Cases on Statutory Preclusion of Judicial Review
1. Anisminic Ltd v Foreign Compensation Commission (1969) AC 147
Facts: Anisminic challenged a decision of the Foreign Compensation Commission, which was protected by a statutory clause stating "the determination... shall not be called into question in any court of law."
Issue: Whether the clause barred all judicial review, including for errors of law.
Held: The House of Lords held that the clause did not preclude judicial review for jurisdictional errors. If the Commission made an error of law going to jurisdiction, it effectively made no decision at all, so courts could review.
Significance: This case curtailed statutory preclusion by holding that clauses cannot exclude judicial review of jurisdictional errors. It created the concept that an error of law affecting jurisdiction nullifies the decision.
2. R v Criminal Injuries Compensation Board, ex parte Lain (1967) 2 QB 864
Facts: The Compensation Board had a statutory bar on judicial review.
Held: The Court of Appeal recognized that Parliament can exclude judicial review but emphasized that such exclusion must be clearly and explicitly stated.
Significance: Established that general words are insufficient to exclude judicial review; clear language is needed.
3. R (Cart) v Upper Tribunal [2011] UKSC 28
Facts: The case involved whether the Upper Tribunal’s decisions could be judicially reviewed.
Held: The Supreme Court held that decisions of the Upper Tribunal, a superior tribunal, are generally not subject to judicial review; instead, they can be challenged by appeal.
Significance: This case clarified the balance between statutory schemes that preclude judicial review and the role of appeals, showing that preclusion is accepted where an alternative remedy (appeal) exists.
4. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
Facts: The Investigatory Powers Tribunal (IPT) was statutorily barred from judicial review.
Issue: Whether courts can review the IPT’s decisions despite statutory preclusion.
Held: The Supreme Court held that the IPT’s decisions are immune from judicial review but allowed the possibility of constitutional review if fundamental rights are at stake.
Significance: Affirmed that statutory preclusion can be effective but recognized limits where constitutional principles are implicated.
5. R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513
Facts: The Home Secretary failed to implement a statutory scheme properly, and there was an attempt to preclude judicial review.
Held: The House of Lords ruled that the Secretary of State’s failure to exercise statutory powers in accordance with the statute was reviewable despite any preclusion.
Significance: Emphasized courts’ willingness to scrutinize unlawful executive inaction even in the face of statutory preclusion clauses.
Summary of Principles from These Cases
Express preclusion is necessary: Parliament must clearly indicate the intent to exclude judicial review.
No preclusion for jurisdictional errors: Courts maintain the power to review errors that undermine the legal authority of decision-makers (Anisminic).
Alternative remedies matter: If an appeal mechanism is available, statutory preclusion of judicial review is more likely to be upheld (Cart).
Fundamental rights and constitutional principles: Courts may ignore preclusion clauses where fundamental rights or constitutional issues arise (Privacy International).
Executive inaction can be reviewed: Statutory preclusion does not bar review of unlawful refusal or failure to act (Fire Brigades Union).
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