Beyond the End of Ouster Clause History?

Abstract

The ruling of the House of Lords in Anisminic was quickly in “every administrative lawyer’s manual” but was not necessarily in their good books. Analysis of the judgment was produced in a steady stream in the years after it was handed down. In keeping with the dominant style of the times, much of this commentary was in the best traditions of technical, doctrinal administrative law, only obliquely connected to normative concerns about constitutional order. Fifty years later, styles of public law scholarship have changed significantly but Anisminic remains relevant and the subject of debate. Also in keeping with the prevailing style of public law, contemporary analysis of ouster clauses frames the core issue as a perpetual, complex conflict between the Rule of Law, Parliamentary Sovereignty, and the separation of powers — and differing conceptions of the nature, status, and relationship of those constitutional principles. For the most part, the debate consists of some scholars critiquing the continued application of the ruling as an affront to Parliamentary Sovereignty and others suggesting it recognises and protects the fundamental character of the Rule of Law. Between these two stances are a spectrum of different views about how these two principles, along with the separation of powers, ought to relate to each other. The contours of the contemporary debate around ouster clauses are very well-known, almost to the extent that the debate around the next ouster clauses case (whenever it may arise) is largely predictable. When this state of affairs is seen in light of the fact that the UK Supreme Court has once again effectively confirmed the Anisminic approach in a recent case, there is almost a sense that we appear to have reached, to coin a phrase, the “end of ouster clause history.” It therefore seems a fitting moment to ask one of the most basic questions that can be posed of any legal principle: does it work? If we assume the broad purpose of Anisminc was to ensure common law control on minimum access to judicial review, does it achieve that end? The argument in this paper is that, when placed in the wider context of restrictions on access to judicial review, the Anisminic approach can only make a minimal substantive contribution to ensuring the accessibility of the judicial review process. Other factors, such as the cost risks of bringing a case, exclude far more people from judicial review than ouster clauses. Given this state of affairs, I suggest that those genuinely concerned with access to judicial review, and how it may be protected through law, must now move beyond traditional Anisminc-type arguments and towards considering what the ruling’s underlying philosophy may have to say about other types of restriction.