Excluding/limiting judicial review
Excluding or Limiting Judicial Review
What is Judicial Review?
Judicial review is the power of courts to examine the actions of administrative or executive bodies to ensure they are lawful, reasonable, and fair. It acts as a control mechanism on administrative power.
What Does Excluding or Limiting Judicial Review Mean?
Sometimes statutes include provisions that:
Exclude judicial review entirely, or
Limit the grounds or scope on which courts can review administrative decisions.
This can be done by finality clauses, ouster clauses, or privative clauses which seek to insulate administrative decisions from court interference.
Key Issues
Whether courts can exclude themselves from reviewing administrative actions
The extent to which ouster clauses can prevent judicial scrutiny
Distinguishing between jurisdictional errors (which courts must review) and non-jurisdictional errors (which may be excluded)
Balancing administrative efficiency with rule of law and protection of rights
Important Case Laws on Excluding or Limiting Judicial Review
1. Anisminic Ltd. v. Foreign Compensation Commission (1969)
Facts: Anisminic’s claim was rejected by the Foreign Compensation Commission. The statute had an ouster clause stating that decisions of the Commission “shall not be called into question in any court.”
Issue: Whether the ouster clause excludes judicial review even for errors of law.
Held: The House of Lords held that any error of law made by a decision-making body renders the decision a nullity and is therefore reviewable despite the ouster clause.
Significance: Established the “no error of law is immune from judicial review” principle. Ouster clauses are interpreted narrowly.
2. R. v. Secretary of State for the Home Department, ex parte Greene (1998)
Facts: A statute excluded courts from reviewing the Secretary’s decision to deport a foreign national.
Issue: Whether the exclusion clause applies when fundamental rights are at stake.
Held: The court held that fundamental rights cannot be taken away by implication and judicial review is allowed to protect such rights.
Significance: Courts will interpret exclusion clauses narrowly, especially when fundamental rights are affected.
3. Council of Civil Service Unions v. Minister for the Civil Service (GCHQ Case) (1985)
Facts: The government banned union membership for security reasons without consultation, and claimed that policy decisions are not subject to judicial review.
Issue: Whether government policy decisions are immune from review.
Held: The House of Lords held that even high policy decisions can be subject to judicial review if legality or procedural fairness is in question.
Significance: Judicial review cannot be entirely excluded simply by labeling something as “policy.”
4. Supreme Court of India in R.K. Jain v. Union of India (1993)
Facts: The government attempted to exclude judicial review of certain administrative actions through statutory clauses.
Issue: Whether statutory clauses excluding judicial review are valid.
Held: The Supreme Court held that such exclusion clauses are valid only if they clearly indicate so, and courts will not lightly exclude their jurisdiction.
Significance: Reinforces that judicial review is a fundamental aspect of the rule of law and cannot be excluded by ambiguous statutes.
5. E.C. Export Credit Guarantee Department v. Kothari Industrial Enterprises (1997)
Facts: The statute contained a privative clause protecting decisions from judicial review except on jurisdictional grounds.
Issue: Extent to which courts can review administrative decisions under such clauses.
Held: Courts retained the power to review jurisdictional errors but not mere errors of fact or non-jurisdictional errors.
Significance: Introduced the jurisdictional error test to balance ouster clauses and judicial oversight.
Summary Table:
| Case | Principle Established |
|---|---|
| Anisminic (1969) | Ouster clauses do not protect decisions affected by errors of law |
| Ex parte Greene (1998) | Exclusion clauses do not bar review where fundamental rights are involved |
| GCHQ Case (1985) | Even policy decisions can be reviewed on legality and fairness |
| R.K. Jain (1993) | Exclusion of judicial review valid only if clear and unambiguous |
| Kothari (1997) | Courts review jurisdictional errors despite privative clauses |
Conclusion:
Exclusion or limitation of judicial review by statute is generally disfavored and interpreted narrowly.
Courts protect their jurisdiction, especially where fundamental rights or jurisdictional errors are involved.
The principle of legality requires clear language to exclude judicial review.
Judicial review remains a vital check on administrative power even in the face of ouster or privative clauses.
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