Judicial Review: Can Laws Escape Scrutiny?

Judicial review is a legal concept that allows courts to examine the actions of legislative, executive, and administrative bodies and determine if they contradict or violate existing laws or a constitution. While judicial review is a vital tool for safeguarding democracy and protecting citizens' rights, there are instances where certain laws or decisions may be excluded from this process. This exclusion can be achieved through various means, such as ouster clauses, time limits, or alternative procedures. The effectiveness of these exclusion methods varies, and courts generally view them restrictively, especially in the United Kingdom and Singapore. The inclusion of finality or total ouster clauses in Acts of Parliament, for example, has been attempted in Singapore to protect executive power, but courts have limited their impact to minimise their contradiction of the rule of law. This tension between parliamentary sovereignty and judicial oversight shapes the ongoing debate surrounding the scope and limitations of judicial review.

Characteristics and Values of Exclusion of Judicial Review

Ouster clauses

There are two types of ouster clauses: total ouster clauses and partial ouster clauses. Total ouster clauses, also known as finality clauses, seek to completely exclude the supervisory jurisdiction of the courts. Partial ouster clauses, on the other hand, specify a time period after which aggrieved persons can no longer apply to the courts for a remedy. The effectiveness of total ouster clauses is limited in certain jurisdictions, such as the United Kingdom and India.

When confronted with an ouster clause, courts have three options: acceptance, a constitutional 'parry', or a constitutional 'lunge'. Acceptance involves acknowledging the ouster clause as valid and binding. A constitutional parry involves subjecting the clause to strict scrutiny and interpreting it narrowly to preserve judicial review. A constitutional lunge, on the other hand, entails open confrontation, with the courts defying parliament and ignoring the ouster clause to retain their supervisory jurisdiction over important exercises of public power.

The use of ouster clauses has been a subject of debate and legal interpretation in various jurisdictions, including the United Kingdom, Australia, Singapore, and India. In the case of Anisminic Ltd. v. Foreign Compensation Committee (1968), the House of Lords held that ouster clauses cannot prevent courts from examining executive decisions that are null and void due to errors of law. This case set a precedent for the interpretation of ouster clauses and their effectiveness in preventing judicial review.

Jurisdictional and non-jurisdictional errors of law

Jurisdiction is the "authority to decide", and a jurisdictional error occurs when the extent of that authority is misconceived. In other words, a jurisdictional error arises when a decision-maker exceeds the authority or power conferred upon them. A decision-maker is required to proceed on a correct understanding of the applicable law, but an error of law will not be jurisdictional in nature if the error does not materially affect the decision.

Jurisdictional errors include asking the wrong question, ignoring relevant material, relying on irrelevant material, and breaching natural justice. For example, in Hossain v Minister for Immigration, a foreign citizen was denied a partner visa because mandatory criteria under the Migration Act were not satisfied. The tribunal's original decision was upheld because the error was not jurisdictional.

In contrast, non-jurisdictional errors, also known as "errors of fact", do not involve a question of law and usually do not affect a decision-maker's power or authority to make a decision. In Shrestha v Minister for Immigration, the Court held that an error of law that could have no impact on a tribunal's decision was not jurisdictional in nature and could not invalidate it.

In Singapore, ouster clauses, which preclude a court from interfering with a decision made by a public authority acting within its jurisdiction, are effective against non-jurisdictional errors of law. However, they are not effective in preventing judicial review of jurisdictional errors of law.

Time limits

In Singapore, the concept of ouster clauses is significant in excluding judicial review. These clauses prevent courts from interfering with decisions made by public authorities, even if non-jurisdictional errors of law occur. The case of R. v. Secretary of State for the Environment, ex parte Ostler (1976) upheld a partial ouster clause, giving applicants six weeks to challenge a decision. This was justified as promoting certainty in executive actions and preventing delays.

The interpretation of time limits in judicial review can vary. For instance, the word "after" in CPR 54.4(1) indicates that the day of the specified event is excluded from the calculation. In contrast, phrases like "within X months from" include the day in the calculation. The "corresponding date rule" further clarifies these calculations, stating that the period ends on the corresponding date in the subsequent month.

The Administrative Court Guide 2021 provides additional context, stating that "the time limit begins to run from the date the decision to be challenged was made." This highlights the importance of adhering to time constraints when initiating judicial review proceedings.

Preventing applicants from challenging decisions

In the United Kingdom, courts generally view finality clauses restrictively and maintain that they are not effective in denying or restricting the extent to which judicial review can be exercised. This is based on the principle that judicial review is a vital safeguard for democracy, ensuring that government power is subject to legal control. The UK courts have also been reluctant to accept evidential ouster clauses, which instruct them not to inquire into specific matters relevant to a challenged decision.

Time limits and alternative procedures are other methods used to restrict access to judicial review. Courts have generally accepted clauses that prescribe time limits for bringing an action or stipulate an alternative procedure to judicial review, as they still provide for some form of judicial oversight. For example, in the UK, there are strict time limits for applying for judicial review, typically within three months of the decision being challenged.

While the inclusion of ouster clauses and time limits can restrict applicants from challenging decisions, it is important to note that their effectiveness varies depending on the legal system and context. In some cases, legislative amendments may be made to reverse the effect of court rulings, as seen in the Chng Suan Tze case in Singapore, where legislative amendments in 1989 mandated the application of a subjective test and limited judicial review.

Parliamentary sovereignty

In the United Kingdom, judicial review is a part of constitutional law that allows people to challenge the exercise of power, usually by a public body. In this context, the courts have consistently held that only the clearest words can exclude judicial review. However, finality or total ouster clauses inserted into Acts of Parliament can be used to exclude judicial review and protect the exercise of executive power. These clauses are generally viewed restrictively by UK courts, and they are subject to some exceptions.

In contrast, Singapore's legal system has a different approach to ouster clauses. While the Singapore courts have recognised the validity of provisions in statutes declaring certain decisions by public authorities as conclusive evidence, effectively preventing applicants from challenging most of these decisions through judicial review. This is a notable difference from the UK's approach, where ouster clauses are interpreted more narrowly to minimise their impact and uphold the rule of law.

In the United States, judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or the United States Constitution. While the US Constitution does not explicitly define the power of judicial review, it has been inferred from its structure, provisions, and history. The power to declare laws unconstitutional is derived from Article III and Article VI of the Constitution, which vest the judicial power of the United States in the Supreme Court and inferior courts established by Congress.

The concept of parliamentary sovereignty is integral to understanding the limits of judicial review in the UK. Parliamentary sovereignty implies that laws passed by Parliament cannot be challenged through judicial review, upholding the principle that Parliament is free to make or unmake any law it wishes. This doctrine reinforces the UK's constitutional theory, which does not recognise a separate system of administrative courts to review the decisions of public bodies. Instead, the government is subject to the jurisdiction of ordinary common law courts.

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