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STATUTORY REMEDIES AND EXCLUSIONOF JUDICIAL REVIEW

7.1 Statutory remedies

Parliament itself may provide a complainant with a remedy at the time itinvests a body with power by way of legislation. Such a remedy may take theform of an appeal from the decision. Such appeal may be general in nature orrestricted to a point of law only. Appeal may lie to, for example, a minister, atribunal or a court. An appeal, it must be remembered, is to be distinguishedfrom the power of judicial review. On appeal, the merits of the decision may beconsidered. On review, the courts are, in theory, concerned with only the legal-ity of the decision (eg was the decision reached intra vires and in accordancewith natural justice) and not with whether the decision is right or wrong on themerits.

When such statutory remedies are provided, Parliament also commonlyrestricts their availability. So, for example, availability might be restricted toparticular persons, often defined as persons aggrieved. The grounds ofappeal might be limited. Also the period in which an appeal can be broughtmight be limited to, for example, within six weeks of the decision being noti-fied. Sometimes Parliament takes the opportunity to attempt to exclude chal-lenge by resort to judicial review either partially or totally.

Parliament has also enacted legislation establishing bodies to receive com-plaints of maladministration by central government departments or local gov-ernment in the form of the Parliamentary Commissioner for Administration(under the Parliamentary Commissioner Act 1967) and the Commissions forLocal Administration (under the Local Government Act 1974). Commissionerswere also established for the National Health Service under the NationalHealth Service Reorganisation Act 1973. Such bodies were modelled upon theso-called Ombudsmen already well-established in a number of jurisdictions,most notably Scandinavia (see Chapter 9).

Parliament also frequently reserves to members of central government(notably ministers) power to control the exercise of power by local govern-ment. This often takes the form of default powers which commonly enablethe minister to send in persons (commissioners) to take over a particular func-tion of a local authority where he or she considers the authority to have failedin its statutory functions. Such a decision by a minister could, of course, itselfbe challenged by the authority by reference to judicial review (see, eg, Asher vSecretary of State for the Environment (1974), although the challenge by localcouncillors to the appointment of a Housing Commissioner by the ministerhere failed).

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7.2 Exhaustion of alternative remedies

The prerogative orders of certiorari, prohibition and mandamus (the public lawremedies) and the equitable remedies of injunction and declaration (the privatelaw remedies) are discretionary. The discretionary nature of the remediesallows the court to refuse judicial review where, inter alia, it is considered thatan alternative remedy is more suitable.

However, in some cases, the issue has been raised whether alternativestatutory remedies must be exhausted before an application for review can beentertained. On the one hand, it might be argued that where Parliament hasprovided a particular remedy, that remedy ought to be pursued in the firstinstance. On the other hand, the nature of the alternative statutory remedy maybe quite different from judicial review. In particular, appeal is concerned withthe merits, not the legality, of the decision. Its non-exercise should not precludea challenge based upon the lawfulness of the decision.

Older authorities suggest that some freedom of choice was open to the liti-gant in selecting his or her remedy. However, the weight of recent authoritysuggests that, as a normal rule, an applicant should exhaust alternative statu-tory remedies. It is only exceptionally that such remedies can be by-passed inan application for judicial review.

In Cooper v Wilson (1937), a police officer successfully challenged his dis-missal by the Watch Committee by way of judicial review even though he hadnot exercised his statutory right of appeal to the Home Secretary. In Reg vGovernor of Pentonville Prison ex parte Azam (1974), the applicants challengedtheir detention as illegal immigrants by way of writs of habeas corpus despite theavailability of a statutory appeal (which could only be exercised from outsidethe United Kingdom). The Court of Appeal looked to the suitability of thestatutory remedy in deciding whether the decision could be challenged by wayof review. Lord Denning stated:

Once the Secretary of State gives directions that a man is to be removed on theground that he is an illegal entrant, the man is given a right of appeal to an adju-dicator on the ground that ... he is not in law an illegal entrant ... He cannotappeal so long as he is in the United Kingdom ... He can only appeal after he hasbeen removed ... Such an appeal would not seem to be a very beneficial reme-dy if a mistake has been made.

These provisions as to appeal give rise to a question of the first importance. Dothey take away a persons right to come to the High Court and seek a writ ofhabeas corpus? I do not think so. If Parliament is to suspend habeas corpus, it mustdo so expressly or by clear implication.

It would appear here that the litigant was to be allowed total freedom of choicein selecting a remedy. It is difficult to envisage any situation where the allegedillegal immigrant would not choose to challenge his or her detention by habeascorpus rather than by the statutory procedure which could be activated only

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once the appellant had left the United Kingdom. It looks very much here as ifthe procedure provided by statute is being rendered obsolete.

In R v Hillingdon Borough Council ex parte Royco Homes (1974), in a challengeto a condition attached to planning permission, a rather more restrainedapproach was taken. This was, however, an application for certiorari rather thanhabeas corpus and it may be that the courts would be especially reluctant toallow any limitation whatsoever on habeas corpus in securing ones release fromunlawful detention (and habeas corpus is not discretionary). In Royco Homes,Lord Widgery CJ stated:

... there is power in appropriate cases for the use of the prerogative orders tocontrol the activity of a local planning authority ... I see no general legal inhibi-tion on the use of such orders, although no doubt they must be exercised onlyin the clearest case and with a good deal of care ...

In particular, it has always been a principle that certiorari will go only wherethere is no other equally effective and convenient remedy ...

... in a very large number of instances it will be found that the statutory systemof appeals is more effective and more convenient ...

... An application for certiorari ... is speedier and cheaper than the other methods,and in a proper case, therefore, it may well be right to allow it to be used in pref-erence to them. I would however define a proper case as being one where the decisionis liable to be upset as a matter of law because on its face it is clearly made without juris-diction or in consequence of an error of law.

In R v Gatwick Airport Immigration Officer ex parte Kharrazi (1980), Lord DenningMR was less restrictive. He stated:

If there is a convenient remedy by way of appeal ... then certiorari may berefused and the applicant left to his remedy by way of appeal. But it has beenheld on countless occasions that the availability of appeal does not debar thecourt from quashing an order by prerogative writs ... It depends on the circum-stances of the case.

In the instant case, Lord Denning considered the remedy by way of appeal tobe useless.

On the other hand, in R v Chief Constable of Merseyside Police ex parte Calveley(1986), police officers dismissed from the force after a disciplinary hearing con-ducted by the Chief Constable exercised their statutory right of appeal and alsoapplied for judicial review on the ground that delay prior to the disciplinaryhearing constituted a breach of natural justice. Here, May LJ asserted that thenormal rule was that an applicant for judicial review should first exhaust what-ever other rights he has by way of appeal and that judicial review should onlybe granted where there was an abuse of process. He concluded, however, thatthe delay in the instant case amounted to such an abuse. May LJ cited theHouse of Lords decision in R v IRC ex parte Preston (1985). There, LordTempleman had asserted that judicial review should not be granted where an

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alternative remedy is available. Lord Scarman had stated that a remedy byway of judicial review is not to be made available where an alternative remedyexists. Judicial review is a collateral challenge: it is not an appeal. WhereParliament has provided ... statutory appeal procedures ... it will only be veryrarely that the courts will allow the collateral process of judicial review to beused to attack an appealable decision.

In R v Hallstrom ex parte Waldron (1986), Glidewell LJ in the Court of Appealsuggests what exceptional circumstances might be. Whilst it was not possibleto formulate a detailed set of circumstances in which judicial review might begranted when an alternative remedy is available, the following should be takeninto account:

whether the alternative statutory remedy will resolve the question at issuefully and directly;

whether the statutory procedure would be quicker or slower than judicialreview;

whether the matter depends on some particular or technical knowledgewhich is more readily available to the alternative statutory body.

The remedies available by way of judicial review may themselves be availablein combination or in the alternative. Here again the court will have adiscretion as to which of the remedies it considers appropriate to the case. Forexample, in R v Secretary of State for Social Services ex parte Association ofMetropolitan Authorities (1986), a declaration was granted that there had beeninadequate consultation with the local authorities before regulations forhousing benefit had been formulated. However, Webster J refused certiorari onthe ground that the principal objection was the lack of consultation rather thanthe substance of the regulations which had been acted upon and been in forcefor some time.

7.3 Exclusion of alternative remedies

A further question is whether the availability of a statutory remedy may excludecompletely the availability of alternative remedies. This argument is differentfrom (and even more restrictive than) the above argument of exhaustion ofstatutory remedies as a pre-requisite to accessing judicial review.

The availability of a statutory right of appeal will not, per se, exclude judi-cial review. However, the applicant may have a choice between alternativeremedies both of which have the same objective, for example both of which areconcerned with the merits of the decision. In such a case, the argument is cer-tainly stronger that the remedy provided by statute should be exhausted in thefirst instance. Indeed, it might even be thought that Parliament intended toexclude resort to the other remedies entirely. This will be the case where

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Parliament has expressly excluded resort to other remedies (though exclusionof resort to an alternative right of appeal will not be successful to exclude resortto judicial review) or where other remedies are excluded by necessary implica-tion. However, clear language is required and there exists a presumption ofstatutory interpretation that the subjects right of access to the courts is not tobe eroded except by clear language or necessary implication. In Pyx Granite vMinister of Housing and Local Government (1960), Lord Simonds stated:

It is a principle not by any means to be whittled down that the subjects recourseto Her Majestys courts for the determination of his rights is not to be excludedexcept by clear words. That is ... a fundamental rule ... It must be asked, then,what is there in the Act ... which bars such recourse. The answer is that there isnothing except the fact that the Act provides him with another remedy. Is it,then, an alternative or an exclusive remedy? There is nothing in the Act to sug-gest that, while a new remedy, perhaps cheap and expeditious, is given, the oldand ... the inalienable remedy of Her Majestys subjects to seek redress in hercourts is taken away.

Again, the court can exercise its discretion (where such exists) and refuse a rem-edy where it believes that an alternative remedy is more appropriate (seeStepney Corporation v John Walker & Sons (1934) cf R v Paddington ValuationOfficer ex parte Peachey Property Co Ltd (1966)).

On the effect of statutory clauses in excluding judicial review, see below.In view of the established principle that access to alternative remedies can

be excluded only by express words or necessary implication, it is perhaps allthe more surprising that, pursuant to the 1977 reforms of remedies in adminis-trative law, the courts themselves developed the so-called exclusivity princi-ple of public law remedies (see O'Reilly v Mackman above, pp 16869), ie thatwhere there is a live issue of public law, the applicant must proceed by way ofthe application for judicial review and not by action in private law. However,an attempt was made to reassert the established principle in Wandsworth LBC vWinder (see above, pp 17172).

7.4 Exclusion of judicial review

7.4.1 Introduction

The availability of judicial review to control the decisions of the administrationmay be limited by Parliament. It should be remembered, however, that there isa presumption against ousting the jurisdiction of the courts and this is one areawhere the presumption is clearly on display. As confirmed by Lord DenningMR in R v Medical Appeal Tribunal ex parte Gilmore (1957) the remedy by certio-rari is never to be taken away by any statute except by the most clear andexplicit words. Attempts to limit judicial control may take various forms.

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The impact of the provision of a statutory remedy (such as a statutoryappeal procedure) on the availability of alternative remedies, including judicialreview, has been noted above.

The existence of a discretion itself will limit control since the essence of adiscretion is to confer some flexibility on the decision-maker in the exercise ofthe discretion. A discretion may be phrased objectively or subjectively. Forexample:

if the minister has reasonable grounds/cause to believe ..., as in Liversidgev Anderson (1942) although this objectively phrased power was actuallyconstrued as subjective;

if the minister thinks fit, as in Roberts v Hopwood (1925);

if the minister in any case so directs, as in Padfield v Minister of Agriculture(1968);

if in his opinion, as in R v Secretary of State for the Environment ex parteHammersmith and Fulham LBC (1990).

The exercise of a subjective discretion should, in theory, be more difficult tocontrol. Its very essence is that it refers to an individuals subjective state ofmind, whereas an objective discretion incorporates an element of, for example,reasonableness within the stated limits of the discretion. Both of these may beconsidered to be indirect attempts to exclude judicial review of administrativeaction.

Parliament, however, is on occasions persuaded to attempt more draconianmethods to exclude judicial review in the form of direct exclusion clauses. Thesemay simply be blatant attempts to exclude the jurisdiction of the courts by theuse of such phrases as the ministers decision shall be final/conclusive or theministers decision shall not be called into question in any court of law.Alternatively, they may take the form of attempts to limit the availability ofreview by reference to either substance and/or to time, ie the grounds ofreview may be limited or the time allowed in which to mount a challenge maybe limited. Such clauses are variously described as exclusion, finality orouster clauses.

From the viewpoint of the decision-makers, in particular members of cen-tral (or local) government influenced in decision-making by policy considera-tions, the less the potential for judicial intervention the stronger and more trou-ble-free their positions will be. In support of this position might be argued thecost, in terms of time and money (but also in terms of political reputation), inchallenges to decided policy. Further, there may be a need for finality and con-sistency in such matters. In certain situations, for example the compulsory pur-chase of land to provide an amenity for the public or a section of it (such as aschool or a hospital), the need for finality is clear. It would be somewhat unsat-isfactory were such a decision to be challenged successfully once the building

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works had progressed. On the other hand, the need for finality should not forma cloak for dishonesty in decision-making and it would generally be unaccept-able if a victim were to be left entirely without a remedy of any form. The con-flict of needs here is clear. The courts have to draw the balance.

As is so often the case in administrative law, the interplay between thesupremacy of Parliament, the separation, or balance, of powers and the rule oflaw is evident. As stated by Denning LJ in the Gilmore case (below): If tribunalswere to be at liberty to exceed their jurisdiction without any check by thecourts, the rule of law would be at an end.

The executive, through Parliament, may on occasions be seen to be strug-gling to identify ways in which it can, should it so wish, confer absolute poweron the decision-maker. The courts can be seen to be struggling to ensure thatthis goal remains unachievable in the fight to protect the individual frompotential abuse. The emphasis of the courts is well represented by Lord Atkinsstatement in Ras Behari Lal v King-Emperor (1933) that Finality is a good thingbut justice is a better. As stated by Craig (Administrative Law, 3rd edn, 1994,Sweet and Maxwell):

Ever since Coke, Holt and Mansfield laid the first foundations for judicialreview, the legislature has attempted to prevent those principles from beingapplied. Various formulae have been inserted into legislation with the intent ofprecluding judicial intervention. Little success has attended these efforts as thecourts have time and again restrictively construed the legislation.

The methods used by Parliament to exclude judicial review of administrativeaction and the extent to which the courts have been willing to accept their effec-tiveness will now be reviewed.

7.4.2 Indirect ouster

Numerous examples of subjectively worded and objectively worded statutorydiscretions and the courts response to such have been referred to throughoutthe consideration of judicial review of administrative action. No further con-sideration is required here.

7.4.3 Direct ouster

A decision shall be final/conclusive

Such a clause will not be effective to exclude judicial review. The courts herehave distinguished appeal from review and found that such a clause applies tothe former only.

In R v Medical Appeal Tribunal ex parte Gilmore (1957), s 36(3) of the NationalInsurance (Industrial Injuries) Act 1946 provided that any decision of a claim

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or question ... shall be final. An assessment of the tribunal for sight loss waschallenged on the basis of error of law on the face of the record. The tribunalhad assessed aggravation to sight impairment at 20% whereas industrialinjuries regulations required the loss to be assessed at 100% since the applicanthad already lost sight in the other eye. The Court of Appeal granted certiorarito quash the tribunals decision. Denning LJ asserted that, whilst sufficient toexclude appeal, the words of the statute did not exclude review. He stated:

... the court never allowed those statutes to be used as a cover for wrongdoingby tribunals. If tribunals were to be at liberty to exceed their jurisdiction with-out any check by the courts, the rule of law would be at an end ... Parliamentonly gives the impress of finality to the decisions of the tribunal on conditionthat they are reached in accordance with the law.

In Fullbrook v Berkshire Magistrates Courts Committee (1970), s 35 of the LocalGovernment Superannuation Act 1937 provided that any question concerningthe rights and liabilities of an employee should be determined initially by thelocal authority and then, if the employee was dissatisfied, by the ministerwhose decision would be final. The plaintiff was deprived of his superannua-tion benefits. When he challenged this decision by applying for a declaration,claiming that he had been denied a hearing, the defendants relied on s 35. Theyfailed. The court found that, while s 35 might well exclude original jurisdictionto grant a declaration, the plaintiff was invoking the supervisory jurisdiction ofthe courts the power to declare void action which was ultra vires. This juris-diction was not abrogated by the finality clause.

It appears that such a clause will be effective, therefore, to preclude appealbut not review. It was even suggested by Lord Denning in Pearlman v Keepersand Governors of Harrow School (1979) that only an appeal on the facts would beexcluded and not an appeal on the law. However, in Re Racal CommunicationsLtd (1981), this restriction was rejected by the House of Lords.

In Tehrani v Rostron (1972), the effectiveness of such a clause was curtailedeven further. Here, the Court of Appeal held it was not effective to precludeappeal by case stated where the matter could have been dealt with by way ofjudicial review.

... shall not be called into question in any court of law

Such a clause will not serve to protect a decision taken in excess of jurisdiction.The term in excess of jurisdiction requires some explanation here. Prior to thedecision of the House of Lords in the Anisminic case (below) a distinction wasmade between errors outside and errors within jurisdiction. Only the formerwould be subject to challenge. Wade and Forsyth (Administrative Law, 7th edn,1994, Oxford University Press) give the example of the Home Secretaryspower to deport an alien. Whether an alien should be deported would be amatter for the Home Secretary. However, it would not be within the ministers

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power, as stated, to determine whether a person was an alien. If the ministermade an order deporting someone who was not within the legal meaning ofalien (a question for the court to determine) he would be acting outside juris-diction. Errors within jurisdiction could be as to fact or law. Situations, how-ever, were not always so clear cut in determining when an error fell within oroutside the decision-makers jurisdiction. The importance of the distinction isnow much diminished. Indeed, it is commonly argued that the decision inAnisminic has shattered the distinction with the result that all errors are outsidejurisdiction.

In Anisminic v Foreign Compensation Commission (1969) itself, the ForeignCompensation Commission was given the task of considering claims made ona fund of some 27.5 million established to compensate those affected by theconfiscation of property by the Egyptian government in 1956. Anisminic Ltdwas one of those so affected. Under the Foreign Compensation (Egypt)(Determination of Claims) Order 1962, a claim could be established if:

the applicant was the person referred to in the relevant part of Annex E ofthe order as the owner of property or their successor in title; and

that person or anyone who became the successor in title of such personbefore March 1959 were British nationals on 31 October 1956 and 28February 1959.

The Commission interpreted this to mean that a claimant and its successors intitle had to be British and so rejected Anisminics claim (as the group to whichAnisminic had sold its interest was non-British). Section 4(4) of the ForeignCompensation Act (FCA) 1950 provided that: The determination by theCommission of any application made to them under this Act shall not becalled in question in any court of law. The Court of Appeal had foundunanimously that this provision protected the Commissions decision fromjudicial supervision.

The House of Lords addressed the following questions:

whether the nationality of a successor in title was relevant where theclaimant was the original owner of property as mentioned in Annex E;

whether the Commissions error caused them to exceed their jurisdictionor whether it was an error within jurisdiction;

whether, if the error was made in excess of jurisdiction, it was protected bys 4(4) of the FCA 1950.

The opposing arguments were put by Lord Reid as follows:

The respondent maintains that these were plain words only capable of havingone meaning. Here is a determination which is apparently valid: there is noth-ing on the face of the document to cast any doubt on its validity. If it is a nulli-

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ty, that could only be established by raising some kind of proceedings in court.But that would be calling the determination in question, and that is expresslyprohibited by the statute. The appellants maintain that that is not the meaningof the words of this provision. They say that determination means a real deter-mination and does not include an apparent or purported determination which,in the eyes of the law, has existence because it is a nullity. Or, putting it anotherway, if you seek to show that a determination is a nullity you are not question-ing the purported determination; you are maintaining that it does not exist as adetermination. It is one thing to question a determination which does exist: it isquite another thing to say that there is nothing to be questioned.

The House of Lords allowed the appeal by a 3:2 majority. All their Lordshipsagreed that s 4(4) would not protect a determination made in excess of juris-diction. A majority held that the Commission had exceeded its jurisdiction. Itsdecision was ultra vires and so void. Consequently, it was not a real determi-nation at all but a purported determination. As the determination was voidand of no effect, it had no existence and there was no determination to whichs 4(4) could apply.

Wade says of the Anisminic decision that it shows clearly the great deter-mination of the courts to uphold their long-standing policy of resistingattempts by Parliament to disarm them by enacting provisions which, if inter-preted literally, would confer uncontrollable power upon subordinate tri-bunals (Administrative Law, 7th edn, 1994, Oxford University Press). On theother hand, however, it might be argued that this decision makes a nonsense ofthe assertion by the courts that they interpret legislation in such a way as tomerely uphold the intentions of Parliament. In Anisminic, the House of Lordsappeared to have diminished the distinction between errors within and outsidejurisdiction to a point where all errors of law were outside jurisdiction.Arguably, the exclusion clause was designed to protect at least some errors oflaw, otherwise what would be the point of its existence? The House of Lordshas rendered such a clause of absolutely no effect.

Parliament did, on this occasion, respond to what it might have legitimate-ly perceived to be a usurpation of the judicial function. In the ForeignCompensation Act 1969, whilst providing for a right of appeal to the Court ofAppeal on questions relating to the jurisdiction of the Foreign CompensationCommission, it also provided that anything which purports to be a determina-tion shall not be called into question in any court of law.

In Re Racal Communications (1981), s 441(3) of the Companies Act 1948 pro-vided that a decision of a High Court judge on an application shall not beappealable. The Court of Appeal held that a decision of the High Court wasreviewable if it went to jurisdiction. However, this approach was rejected bythe House of Lords on the ground, inter alia, that the jurisdiction of the Courtof Appeal was itself appellate only and so it could not deal with an originalapplication for judicial review (ie the Court of Appeal was itself acting outsidejurisdiction!).

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In South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral ProductsManufacturing Employees Union (1981), the applicants sought to have a decisionof the Malaysian Industrial Court in favour of the Union quashed on the basisof error of law on the face of the record. Section 29(3) of the MalaysianIndustrial Relations Act 1967 provided that subject to this Act, an award of thecourt shall be final and conclusive, and no award shall be challenged, appealedagainst, reviewed, quashed or called into question in any court of law. Here,the Privy Council held the clause to be effective to exclude review for errors oflaw within jurisdiction while errors outside jurisdiction were not excludedfrom review.

No civil proceedings ...

In Ex parte Waldron (1986), the Mental Health Act 1983 contained provisions toprotect doctors from legal action pursuant to them exercising powers under theAct, including powers of compulsory detention and treatment. Section 139(2)of the 1983 Act provided that No civil proceedings shall be brought againstany person in any court in respect of any such act without leave of the HighCourt .... This provision was held to exclude civil actions in tort but not, in theabsence of express words, access to judicial review. Ackner LJ further justifiedthis construction by reference to the fact that the applicant was challenging thecircumstances of her compulsory admission to hospital which was outside thejurisdiction of the statutory appellate body, the mental health review tribunal.

No certiorari

A clause which expressly purports to restrict the specific remedy of certiorarihas not been allowed by the courts to protect a decision from jurisdictionalerror.

In Pearlman v Governors of Harrow School (1979), the Housing Act 1974 con-ferred power on the county court to decide whether installation of central heat-ing constituted an improvement made by the execution of works amountingto a structural alteration. Schedule 8 para 2(2) provided that a determinationby the court shall be final and conclusive and s 107 of the County Courts Act1959 provided that no judgment of county courts ... shall be removed byappeal, motion, or certiorari or otherwise into any other court.

Lord Denning MR asserted that, even if s 107 did apply (and, in his opin-ion, it did not), it would only exclude certiorari for error of law on the face ofthe record and not for an error going to jurisdiction.

However, such a clause will operate to protect a decision from challenge onthe basis of error within jurisdiction on the face of the record (when it exists)only if contained in a statute passed as from August 1958 (but not if containedin a statute passed before that date) under s 12 of the Tribunals and InquiriesAct 1958 (see below).

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... as if enacted/conclusive evidence

A technique which has in the past been used to attempt to protect subordinatelegislation from review is a provision that the subordinate legislative ordershall have effect as if enacted in the parent Act. This is an attempt to give sub-ordinate legislation the effect of primary legislation, ie that it should be treatedas if enacted by Parliament and so subject only to interpretation and not reviewin accordance with the principle of Parliamentary supremacy. It may be accom-panied by a provision that the ministers confirmation shall be conclusive evi-dence that the order has been duly made within the powers of the Act.

In Ex parte Ringer (1909) such a provision was held to render an orderunchallengeable. Also, in Institute of Patent Agents v Lockwood (1894) such aclause was held by the House of Lords to have this intended effect. However,in Minister of Health ex parte Yaffe (1931), the House of Lords held that such aclause would protect subordinate legislation only if it did not conflict with theparent Act.

The use of such clauses was severely criticised by the 1932 Committee onMinisters Powers (Cmnd 4060) and is now unpopular. However, they may stillbe found in older legislation.

7.4.4 Time limit clauses

Perhaps a more acceptable method of limiting judicial review within certaincontexts is by the use of clauses which limit the period of time within which adecision can be challenged. Certain decisions are of such a nature that finalityis required. This is particularly so in the context of, for example, compulsorypurchase and planning decisions where the consequence of the decision maywell be demolition and/or the construction of buildings. The implications ofsuch a decision being subject to challenge once works have progressed inreliance upon it are obvious. Such clauses, however, also often limit review byreference to stated grounds on which review is permissible. This aspect is morequestionable. Such clauses raise two issues:

whether such a decision can be challenged outside the stated time on anygrounds whatsoever;

whether such a decision can be challenged within the stated time on thestated grounds alone and on no other grounds.

In Smith v East Elloe Rural District Council (1956), a challenge to a compulsorypurchase order out of time on the ground of bad faith was rejected by theHouse of Lords. The statute allowed challenge within six weeks on the basiseither that the order was not within the powers of the Act or that a requirementof the Act had not been complied with. Lords Reid and Somervell concludedthat challenges for fraud could be made at any time and were not precluded bythe time clause. The majority, however, held that challenge was precluded afterthe six weeks. The argument that Parliament cannot have intended to protect a

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decision made in bad faith did not persuade the House of Lords. The point wasmade, in particular, that Mrs Smith continued to have a remedy in the tort ofdeceit against the officials (should such conduct be established) and, therefore,a remedy lay in damages via an alternative route. Lord Morton went even fur-ther and asserted that challenge within six weeks could be mounted only forbreach of express statutory requirements and not any unlawful action.

(In Smith v Pyewell (1959), proceedings were instituted against the clerk tothe local authority.)

In R v Secretary of State for the Environment ex parte Ostler (1977), a challengewas again made to a compulsory purchase order out of time. The applicantsought to overcome the time limit by arguing that an agreement had been keptfrom him. Had he known of this agreement, he would have challenged thedecision within the time limit. The Court of Appeal nonetheless upheld thetime limit and disallowed the application. Lord Denning MR noted in particu-lar the partial nature of the ouster clause (so distinguishing Anisminic on thebasis that there was there an attempt to oust the jurisdiction of the court com-pletely), the nature of the proceedings (administrative in Smith but more judi-cial in Anisminic) and the fact that works had commenced in reliance on thedecision. The reasoning of Lord Denning here might not be thought to beentirely convincing. To accept a limited ouster on the basis that it is not a com-plete ouster is a strange form of reasoning. The nature of the decision admin-istrative versus judicial begs the old question of what is a judicial decisionand reflects a distinction which Lord Reid had tried to lay to rest, at least in thecontext of natural justice, in Ridge v Baldwin (see above, pp 12627). There isalso at least some force in the argument that Parliament, if asked at the time ofthe passing of the relevant legislation whether it intended to protect a decisionmade in bad faith, would have denied such an intent. Perhaps an intellectualrationale should simply not be attempted but the pragmatic response accepted.

In R v Cornwall County Council ex parte Huntington; R v Devon County Councilex parte Isaac (1994), the councils had modified definitive maps to show a rightof way and a by-way respectively over the applicants land. Such modificationswere subject to confirmation by the minister and that confirmation had to bepreceded by an inquiry or a hearing. An order could be challenged within 42days of the notice of confirmation, subject to which the validity of an ordershall not be questioned in any legal proceedings whatsoever. An attempt bythe applicants to challenge the modifications prior to confirmation failed. Theclause was successful in precluding challenge at this earlier stage.

7.4.5 Statutory limitations on exclusion of judicial review

In 1958, the Franks Committee (Cmnd 218) recommended the removal of claus-es which ousted judicial review. Now, s 12(1) of the Tribunals and Inquiries Act(TIA) 1992 (replacing equivalent provisions in Acts of the same name of 1958and 1972) provides:

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(a) any provision in an Act passed before 1 August 1958 that any order ordetermination shall not be called into question in any court; or

(b) any provision in such an Act which by similar words excludes any of thepowers of the High Court,

shall not have effect so as to prevent the removal of the proceedings into theHigh Court by order of certiorari or to prejudice the powers of the High Courtto make orders of mandamus.

Under s 12(3) of the TIA 1992, this provision does not apply to orders or deter-minations made by a court of law or to time clauses (see above).

7.5 Conclusion

The judicial response to exclusion clauses illustrates graphically the contradic-tions in administrative law in particular, the courts insistence on their asser-tion that the function of statutory interpretation is to fulfil the intentions ofParliament. The intention of Parliament in many of these cases is to curtail tothe highest degree the possibility of judicial intervention. However, this cannot,of course, be publicly stated for fear of incurring allegations of conduct in defi-ance of the rule of law, itself a principle much used by the courts to justify theirinterventionist stance. It seems that, however large the sledgehammer used byParliament, the courts will not allow the nut of judicial review to be cracked.As stated by Craig (Administrative Law, 3rd edn, 1994, Sweet and Maxwell):

Whether it would be possible to devise an ouster clause which succeeded inexcluding review is less a matter of semantics than of judicial attitude and leg-islative response.

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STATUTORY REMEDIES AND EXCLUSIONOF JUDICIAL REVIEW

Statutory remedies

Parliament may provide a complainant with a remedy at the time it invests abody with a decision-making power. Such a remedy may take the form of anappeal which may be general or on a point of law only. Such statutory reme-dies are often restricted by the statute itself by reference to, for example, thepersons to whom the remedy is available, the grounds on which the remedy isavailable or the time within which the remedy can be applied for.

Exhaustion of statutory remedies

As the remedies available by way of an application for judicial review (with theexception of habeas corpus) are discretionary, the courts may exercise their dis-cretion to refuse such remedies if other adequate remedies are available.

Recent authority suggests that, as a general rule, an applicant will berequired to exhaust statutory remedies available before pursuing an applica-tion for judicial review (R v IRC ex parte Preston (1985)).

The remedies available by way of judicial review are themselves availablein combination or in the alternative.

Exclusion of alternative remedies

The question here is whether the availability of a statutory remedy mayexclude completely the availability of alternative remedies (not simply thatstatutory remedies must be exhausted before an application for judicial reviewis pursued).

The availability of a statutory remedy will not per se exclude judicial reviewand, in order to preclude access to alternative remedies, the language of thestatute must be clear. There is a presumption of statutory interpretation againsterosion of the citizens right of access to the courts.

Exclusion of judicial review

Where power is conferred by statute, the statute may attempt to limit or pre-vent resort to judicial review. This may be attempted indirectly by conferring adiscretion on the decision-maker which is drafted in wide terms (either objec-tive or subjective) or directly by the use of exclusion/ouster/finality clauses.

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These have taken a variety of forms: a decision shall be final/conclusive; shall not be called into question in any court of law; no civil proceedings; no certiorari; as if enacted/conclusive evidence.

Time limit clauses

A statute may specify the period of time within which a decision may be chal-lenged, particularly so where the context of the decision requires finality, forexample compulsory purchase and planning decisions. The courts have accept-ed that such clauses may well be effective to preclude judicial review once thattime limit has expired even where a challenge is based on the ground of badfaith (Smith v East Elloe RDC (1956)).

Statutory limitations on exclusion of judicial review

Section 12(1) of the Tribunals and Inquiries Act 1992 provides that an exclusionclause contained in an Act passed before 1 August 1958 shall not have effect topreclude certiorari or mandamus. Under s 12(3), this provision does not apply,however, to determinations of a court of law or to time clauses.

BOOK COVERTITLECOPYRIGHTCONTENTSPrefaceTable of casesTable of statutesTable of abbreviations1 THE NATURE AND PURPOSE OF ADMINISTRATIVE LAW2 THE HISTORY AND DEVELOPMENT OF ADMINISTRATIVE LAW3 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION I PREREQUISITES TO REVIEW4 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION II - SUBSTANTIVE ULTRA VIRES AND ABUSE OF POWER5 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION III PROCEDURAL ULTRA VIRES6 REMEDIES IN ADMINISTRATIVE LAW7 STATUTORY REMEDIES AND EXCLUSION OF JUDICIAL REVIEW8 PUBLIC INTEREST IMMUNITY9 EXTRA JUDICIAL AVENUES OF REDRESS10 EUROPEAN ADMINISTRATIVE LAW I - THE EUROPEAN COMMUNITY11 EUROPEAN ADMINISTRATIVE LAW II THE EUROPEAN CONVENTION ON HUMAN RIGHTS12 LIABILITY OF PUBLIC BODIES IN PRIVATE LAWFURTHER READINGIndexBOOK COVERTITLECOPYRIGHTCONTENTSPrefaceTable of casesTable of statutesTable of abbreviations1 THE NATURE AND PURPOSE OF ADMINISTRATIVE LAW2 THE HISTORY AND DEVELOPMENT OF ADMINISTRATIVE LAW3 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION I PREREQUISITES TO REVIEW4 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION II - SUBSTANTIVE ULTRA VIRES AND ABUSE OF POWER5 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION III PROCEDURAL ULTRA VIRES6 REMEDIES IN ADMINISTRATIVE LAW8 PUBLIC INTEREST IMMUNITY9 EXTRA JUDICIAL AVENUES OF REDRESS10 EUROPEAN ADMINISTRATIVE LAW I - THE EUROPEAN COMMUNITY11 EUROPEAN ADMINISTRATIVE LAW II THE EUROPEAN CONVENTION ON HUMAN RIGHTS12 LIABILITY OF PUBLIC BODIES IN PRIVATE LAWFURTHER READINGIndex