CHAPTER 7

STATUTORY REMEDIES AND EXCLUSION

OF JUDICIAL REVIEW

7.1

Statutory remedies

Parliament itself may provide a complainant with a remedy at the time it

invests a body with power by way of legislation. Such a remedy may take the
form of an appeal from the decision. Such appeal may be general in nature or
restricted to a point of law only. Appeal may lie to, for example, a minister, a
tribunal or a court. An appeal, it must be remembered, is to be distinguished
from the power of judicial review. On appeal, the merits of the decision may be
considered. On review, the courts are, in theory, concerned with only the legality of the decision (eg was the decision reached intra vires and in accordance
with natural justice) and not with whether the decision is right or wrong on the
merits.
When such statutory remedies are provided, Parliament also commonly
restricts their availability. So, for example, availability might be restricted to
particular persons, often defined as persons aggrieved. The grounds of
appeal might be limited. Also the period in which an appeal can be brought
might be limited to, for example, within six weeks of the decision being notified. Sometimes Parliament takes the opportunity to attempt to exclude challenge by resort to judicial review either partially or totally.
Parliament has also enacted legislation establishing bodies to receive complaints of maladministration by central government departments or local government in the form of the Parliamentary Commissioner for Administration
(under the Parliamentary Commissioner Act 1967) and the Commissions for
Local Administration (under the Local Government Act 1974). Commissioners
were also established for the National Health Service under the National
Health Service Reorganisation Act 1973. Such bodies were modelled upon the
so-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 government. This often takes the form of default powers which commonly enable
the minister to send in persons (commissioners) to take over a particular function of a local authority where he or she considers the authority to have failed
in its statutory functions. Such a decision by a minister could, of course, itself
be challenged by the authority by reference to judicial review (see, eg, Asher v
Secretary of State for the Environment (1974), although the challenge by local
councillors to the appointment of a Housing Commissioner by the minister
here failed).
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7.2

Exhaustion of alternative remedies

The prerogative orders of certiorari, prohibition and mandamus (the public law
remedies) and the equitable remedies of injunction and declaration (the private
law remedies) are discretionary. The discretionary nature of the remedies
allows the court to refuse judicial review where, inter alia, it is considered that
an alternative remedy is more suitable.
However, in some cases, the issue has been raised whether alternative
statutory remedies must be exhausted before an application for review can be
entertained. On the one hand, it might be argued that where Parliament has
provided a particular remedy, that remedy ought to be pursued in the first
instance. On the other hand, the nature of the alternative statutory remedy may
be quite different from judicial review. In particular, appeal is concerned with
the merits, not the legality, of the decision. Its non-exercise should not preclude
a challenge based upon the lawfulness of the decision.
Older authorities suggest that some freedom of choice was open to the litigant in selecting his or her remedy. However, the weight of recent authority
suggests that, as a normal rule, an applicant should exhaust alternative statutory remedies. It is only exceptionally that such remedies can be by-passed in
an application for judicial review.
In Cooper v Wilson (1937), a police officer successfully challenged his dismissal by the Watch Committee by way of judicial review even though he had
not exercised his statutory right of appeal to the Home Secretary. In Reg v
Governor of Pentonville Prison ex parte Azam (1974), the applicants challenged
their detention as illegal immigrants by way of writs of habeas corpus despite the
availability of a statutory appeal (which could only be exercised from outside
the United Kingdom). The Court of Appeal looked to the suitability of the
statutory remedy in deciding whether the decision could be challenged by way
of review. Lord Denning stated:
Once the Secretary of State gives directions that a man is to be removed on the
ground that he is an illegal entrant, the man is given a right of appeal to an adjudicator on the ground that ... he is not in law an illegal entrant ... He cannot
appeal so long as he is in the United Kingdom ... He can only appeal after he has
been removed ... Such an appeal would not seem to be a very beneficial remedy if a mistake has been made.
These provisions as to appeal give rise to a question of the first importance. Do
they take away a persons right to come to the High Court and seek a writ of
habeas corpus? I do not think so. If Parliament is to suspend habeas corpus, it must
do so expressly or by clear implication.

It would appear here that the litigant was to be allowed total freedom of choice
in selecting a remedy. It is difficult to envisage any situation where the alleged
illegal immigrant would not choose to challenge his or her detention by habeas
corpus 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 if
the procedure provided by statute is being rendered obsolete.
In R v Hillingdon Borough Council ex parte Royco Homes (1974), in a challenge
to a condition attached to planning permission, a rather more restrained
approach was taken. This was, however, an application for certiorari rather than
habeas corpus and it may be that the courts would be especially reluctant to
allow any limitation whatsoever on habeas corpus in securing ones release from
unlawful 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 to
control the activity of a local planning authority ... I see no general legal inhibition on the use of such orders, although no doubt they must be exercised only
in the clearest case and with a good deal of care ...
In particular, it has always been a principle that certiorari will go only where
there is no other equally effective and convenient remedy ...
... in a very large number of instances it will be found that the statutory system
of 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 preference to them. I would however define a proper case as being one where the decision
is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law.

In R v Gatwick Airport Immigration Officer ex parte Kharrazi (1980), Lord Denning

MR was less restrictive. He stated:
If there is a convenient remedy by way of appeal ... then certiorari may be
refused and the applicant left to his remedy by way of appeal. But it has been
held on countless occasions that the availability of appeal does not debar the
court from quashing an order by prerogative writs ... It depends on the circumstances of the case.

In the instant case, Lord Denning considered the remedy by way of appeal to
be 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 conducted by the Chief Constable exercised their statutory right of appeal and also
applied for judicial review on the ground that delay prior to the disciplinary
hearing constituted a breach of natural justice. Here, May LJ asserted that the
normal rule was that an applicant for judicial review should first exhaust whatever other rights he has by way of appeal and that judicial review should only
be granted where there was an abuse of process. He concluded, however, that
the delay in the instant case amounted to such an abuse. May LJ cited the
House of Lords decision in R v IRC ex parte Preston (1985). There, Lord
Templeman 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 by
way of judicial review is not to be made available where an alternative remedy
exists. Judicial review is a collateral challenge: it is not an appeal. Where
Parliament has provided ... statutory appeal procedures ... it will only be very
rarely that the courts will allow the collateral process of judicial review to be
used to attack an appealable decision.
In R v Hallstrom ex parte Waldron (1986), Glidewell LJ in the Court of Appeal
suggests what exceptional circumstances might be. Whilst it was not possible
to formulate a detailed set of circumstances in which judicial review might be
granted when an alternative remedy is available, the following should be taken
into account:
whether the alternative statutory remedy will resolve the question at issue
fully and directly;
whether the statutory procedure would be quicker or slower than judicial
review;
whether the matter depends on some particular or technical knowledge
which is more readily available to the alternative statutory body.
The remedies available by way of judicial review may themselves be available
in combination or in the alternative. Here again the court will have a
discretion as to which of the remedies it considers appropriate to the case. For
example, in R v Secretary of State for Social Services ex parte Association of
Metropolitan Authorities (1986), a declaration was granted that there had been
inadequate consultation with the local authorities before regulations for
housing benefit had been formulated. However, Webster J refused certiorari on
the ground that the principal objection was the lack of consultation rather than
the substance of the regulations which had been acted upon and been in force
for some time.

7.3

Exclusion of alternative remedies

A further question is whether the availability of a statutory remedy may exclude

completely the availability of alternative remedies. This argument is different
from (and even more restrictive than) the above argument of exhaustion of
statutory remedies as a pre-requisite to accessing judicial review.
The availability of a statutory right of appeal will not, per se, exclude judicial review. However, the applicant may have a choice between alternative
remedies both of which have the same objective, for example both of which are
concerned with the merits of the decision. In such a case, the argument is certainly stronger that the remedy provided by statute should be exhausted in the
first instance. Indeed, it might even be thought that Parliament intended to
exclude 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 exclusion
of resort to an alternative right of appeal will not be successful to exclude resort
to judicial review) or where other remedies are excluded by necessary implication. However, clear language is required and there exists a presumption of
statutory interpretation that the subjects right of access to the courts is not to
be eroded except by clear language or necessary implication. In Pyx Granite v
Minister of Housing and Local Government (1960), Lord Simonds stated:
It is a principle not by any means to be whittled down that the subjects recourse
to Her Majestys courts for the determination of his rights is not to be excluded
except 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 is
nothing 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 suggest that, while a new remedy, perhaps cheap and expeditious, is given, the old
and ... the inalienable remedy of Her Majestys subjects to seek redress in her
courts is taken away.

Again, the court can exercise its discretion (where such exists) and refuse a remedy where it believes that an alternative remedy is more appropriate (see
Stepney Corporation v John Walker & Sons (1934) cf R v Paddington Valuation
Officer 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 all
the more surprising that, pursuant to the 1977 reforms of remedies in administrative law, the courts themselves developed the so-called exclusivity principle of public law remedies (see O'Reilly v Mackman above, pp 16869), ie that
where there is a live issue of public law, the applicant must proceed by way of
the application for judicial review and not by action in private law. However,
an attempt was made to reassert the established principle in Wandsworth LBC v
Winder (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 administration

may be limited by Parliament. It should be remembered, however, that there is
a presumption against ousting the jurisdiction of the courts and this is one area
where the presumption is clearly on display. As confirmed by Lord Denning
MR in R v Medical Appeal Tribunal ex parte Gilmore (1957) the remedy by certiorari is never to be taken away by any statute except by the most clear and
explicit 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 statutory
appeal procedure) on the availability of alternative remedies, including judicial
review, has been noted above.
The existence of a discretion itself will limit control since the essence of a
discretion is to confer some flexibility on the decision-maker in the exercise of
the discretion. A discretion may be phrased objectively or subjectively. For
example:
if the minister has reasonable grounds/cause to believe ..., as in Liversidge
v Anderson (1942) although this objectively phrased power was actually
construed 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 parte
Hammersmith and Fulham LBC (1990).
The exercise of a subjective discretion should, in theory, be more difficult to
control. Its very essence is that it refers to an individuals subjective state of
mind, whereas an objective discretion incorporates an element of, for example,
reasonableness within the stated limits of the discretion. Both of these may be
considered to be indirect attempts to exclude judicial review of administrative
action.
Parliament, however, is on occasions persuaded to attempt more draconian
methods to exclude judicial review in the form of direct exclusion clauses. These
may simply be blatant attempts to exclude the jurisdiction of the courts by the
use of such phrases as the ministers decision shall be final/conclusive or the
ministers decision shall not be called into question in any court of law.
Alternatively, they may take the form of attempts to limit the availability of
review by reference to either substance and/or to time, ie the grounds of
review may be limited or the time allowed in which to mount a challenge may
be limited. Such clauses are variously described as exclusion, finality or
ouster clauses.
From the viewpoint of the decision-makers, in particular members of central (or local) government influenced in decision-making by policy considerations, the less the potential for judicial intervention the stronger and more trouble-free their positions will be. In support of this position might be argued the
cost, in terms of time and money (but also in terms of political reputation), in
challenges to decided policy. Further, there may be a need for finality and consistency in such matters. In certain situations, for example the compulsory purchase of land to provide an amenity for the public or a section of it (such as a
school or a hospital), the need for finality is clear. It would be somewhat unsatisfactory 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 form
a cloak for dishonesty in decision-making and it would generally be unacceptable if a victim were to be left entirely without a remedy of any form. The conflict of needs here is clear. The courts have to draw the balance.
As is so often the case in administrative law, the interplay between the
supremacy of Parliament, the separation, or balance, of powers and the rule of
law is evident. As stated by Denning LJ in the Gilmore case (below): If tribunals
were to be at liberty to exceed their jurisdiction without any check by the
courts, the rule of law would be at an end.
The executive, through Parliament, may on occasions be seen to be struggling to identify ways in which it can, should it so wish, confer absolute power
on the decision-maker. The courts can be seen to be struggling to ensure that
this goal remains unachievable in the fight to protect the individual from
potential abuse. The emphasis of the courts is well represented by Lord Atkins
statement in Ras Behari Lal v King-Emperor (1933) that Finality is a good thing
but 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 judicial
review, the legislature has attempted to prevent those principles from being
applied. Various formulae have been inserted into legislation with the intent of
precluding judicial intervention. Little success has attended these efforts as the
courts have time and again restrictively construed the legislation.

The methods used by Parliament to exclude judicial review of administrative

action and the extent to which the courts have been willing to accept their effectiveness will now be reviewed.

7.4.2

Indirect ouster

Numerous examples of subjectively worded and objectively worded statutory

discretions and the courts response to such have been referred to throughout
the consideration of judicial review of administrative action. No further consideration 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 here
have distinguished appeal from review and found that such a clause applies to
the former only.
In R v Medical Appeal Tribunal ex parte Gilmore (1957), s 36(3) of the National
Insurance (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 was
challenged on the basis of error of law on the face of the record. The tribunal
had assessed aggravation to sight impairment at 20% whereas industrial
injuries regulations required the loss to be assessed at 100% since the applicant
had already lost sight in the other eye. The Court of Appeal granted certiorari
to quash the tribunals decision. Denning LJ asserted that, whilst sufficient to
exclude 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 wrongdoing
by tribunals. If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end ... Parliament
only gives the impress of finality to the decisions of the tribunal on condition
that they are reached in accordance with the law.

In Fullbrook v Berkshire Magistrates Courts Committee (1970), s 35 of the Local

Government Superannuation Act 1937 provided that any question concerning
the rights and liabilities of an employee should be determined initially by the
local authority and then, if the employee was dissatisfied, by the minister
whose decision would be final. The plaintiff was deprived of his superannuation 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. They
failed. The court found that, while s 35 might well exclude original jurisdiction
to grant a declaration, the plaintiff was invoking the supervisory jurisdiction of
the courts the power to declare void action which was ultra vires. This jurisdiction was not abrogated by the finality clause.
It appears that such a clause will be effective, therefore, to preclude appeal
but not review. It was even suggested by Lord Denning in Pearlman v Keepers
and Governors of Harrow School (1979) that only an appeal on the facts would be
excluded and not an appeal on the law. However, in Re Racal Communications
Ltd (1981), this restriction was rejected by the House of Lords.
In Tehrani v Rostron (1972), the effectiveness of such a clause was curtailed
even further. Here, the Court of Appeal held it was not effective to preclude
appeal by case stated where the matter could have been dealt with by way of
judicial 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 the
decision of the House of Lords in the Anisminic case (below) a distinction was
made between errors outside and errors within jurisdiction. Only the former
would be subject to challenge. Wade and Forsyth (Administrative Law, 7th edn,
1994, Oxford University Press) give the example of the Home Secretarys
power to deport an alien. Whether an alien should be deported would be a
matter 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 minister
made an order deporting someone who was not within the legal meaning of
alien (a question for the court to determine) he would be acting outside jurisdiction. Errors within jurisdiction could be as to fact or law. Situations, however, were not always so clear cut in determining when an error fell within or
outside the decision-makers jurisdiction. The importance of the distinction is
now much diminished. Indeed, it is commonly argued that the decision in
Anisminic has shattered the distinction with the result that all errors are outside
jurisdiction.
In Anisminic v Foreign Compensation Commission (1969) itself, the Foreign
Compensation Commission was given the task of considering claims made on
a fund of some 27.5 million established to compensate those affected by the
confiscation of property by the Egyptian government in 1956. Anisminic Ltd
was 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 of
the order as the owner of property or their successor in title; and
that person or anyone who became the successor in title of such person
before March 1959 were British nationals on 31 October 1956 and 28
February 1959.
The Commission interpreted this to mean that a claimant and its successors in
title had to be British and so rejected Anisminics claim (as the group to which
Anisminic had sold its interest was non-British). Section 4(4) of the Foreign
Compensation Act (FCA) 1950 provided that: The determination by the
Commission of any application made to them under this Act shall not be
called in question in any court of law. The Court of Appeal had found
unanimously that this provision protected the Commissions decision from
judicial supervision.
The House of Lords addressed the following questions:
whether the nationality of a successor in title was relevant where the
claimant was the original owner of property as mentioned in Annex E;
whether the Commissions error caused them to exceed their jurisdiction
or whether it was an error within jurisdiction;
whether, if the error was made in excess of jurisdiction, it was protected by
s 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 having
one meaning. Here is a determination which is apparently valid: there is nothing 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 expressly
prohibited by the statute. The appellants maintain that that is not the meaning
of the words of this provision. They say that determination means a real determination 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 another
way, if you seek to show that a determination is a nullity you are not questioning the purported determination; you are maintaining that it does not exist as a
determination. It is one thing to question a determination which does exist: it is
quite 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 Lordships
agreed that s 4(4) would not protect a determination made in excess of jurisdiction. A majority held that the Commission had exceeded its jurisdiction. Its
decision was ultra vires and so void. Consequently, it was not a real determination at all but a purported determination. As the determination was void
and of no effect, it had no existence and there was no determination to which
s 4(4) could apply.
Wade says of the Anisminic decision that it shows clearly the great determination of the courts to uphold their long-standing policy of resisting
attempts by Parliament to disarm them by enacting provisions which, if interpreted literally, would confer uncontrollable power upon subordinate tribunals (Administrative Law, 7th edn, 1994, Oxford University Press). On the
other hand, however, it might be argued that this decision makes a nonsense of
the assertion by the courts that they interpret legislation in such a way as to
merely uphold the intentions of Parliament. In Anisminic, the House of Lords
appeared to have diminished the distinction between errors within and outside
jurisdiction to a point where all errors of law were outside jurisdiction.
Arguably, the exclusion clause was designed to protect at least some errors of
law, otherwise what would be the point of its existence? The House of Lords
has rendered such a clause of absolutely no effect.
Parliament did, on this occasion, respond to what it might have legitimately perceived to be a usurpation of the judicial function. In the Foreign
Compensation Act 1969, whilst providing for a right of appeal to the Court of
Appeal on questions relating to the jurisdiction of the Foreign Compensation
Commission, it also provided that anything which purports to be a determination shall not be called into question in any court of law.
In Re Racal Communications (1981), s 441(3) of the Companies Act 1948 provided that a decision of a High Court judge on an application shall not be
appealable. The Court of Appeal held that a decision of the High Court was
reviewable if it went to jurisdiction. However, this approach was rejected by
the House of Lords on the ground, inter alia, that the jurisdiction of the Court
of Appeal was itself appellate only and so it could not deal with an original
application for judicial review (ie the Court of Appeal was itself acting outside
jurisdiction!).

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In South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products
Manufacturing Employees Union (1981), the applicants sought to have a decision
of the Malaysian Industrial Court in favour of the Union quashed on the basis
of error of law on the face of the record. Section 29(3) of the Malaysian
Industrial Relations Act 1967 provided that subject to this Act, an award of the
court shall be final and conclusive, and no award shall be challenged, appealed
against, 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 of
law within jurisdiction while errors outside jurisdiction were not excluded
from review.
No civil proceedings ...
In Ex parte Waldron (1986), the Mental Health Act 1983 contained provisions to
protect doctors from legal action pursuant to them exercising powers under the
Act, including powers of compulsory detention and treatment. Section 139(2)
of the 1983 Act provided that No civil proceedings shall be brought against
any person in any court in respect of any such act without leave of the High
Court .... This provision was held to exclude civil actions in tort but not, in the
absence of express words, access to judicial review. Ackner LJ further justified
this construction by reference to the fact that the applicant was challenging the
circumstances of her compulsory admission to hospital which was outside the
jurisdiction of the statutory appellate body, the mental health review tribunal.
No certiorari
A clause which expressly purports to restrict the specific remedy of certiorari
has not been allowed by the courts to protect a decision from jurisdictional
error.
In Pearlman v Governors of Harrow School (1979), the Housing Act 1974 conferred power on the county court to decide whether installation of central heating constituted an improvement made by the execution of works amounting
to a structural alteration. Schedule 8 para 2(2) provided that a determination
by the court shall be final and conclusive and s 107 of the County Courts Act
1959 provided that no judgment of county courts ... shall be removed by
appeal, motion, or certiorari or otherwise into any other court.
Lord Denning MR asserted that, even if s 107 did apply (and, in his opinion, it did not), it would only exclude certiorari for error of law on the face of
the record and not for an error going to jurisdiction.
However, such a clause will operate to protect a decision from challenge on
the 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 contained
in a statute passed before that date) under s 12 of the Tribunals and Inquiries
Act 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 subordinate
legislation from review is a provision that the subordinate legislative order
shall have effect as if enacted in the parent Act. This is an attempt to give subordinate legislation the effect of primary legislation, ie that it should be treated
as if enacted by Parliament and so subject only to interpretation and not review
in accordance with the principle of Parliamentary supremacy. It may be accompanied by a provision that the ministers confirmation shall be conclusive evidence 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 order
unchallengeable. Also, in Institute of Patent Agents v Lockwood (1894) such a
clause 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 a
clause would protect subordinate legislation only if it did not conflict with the
parent Act.
The use of such clauses was severely criticised by the 1932 Committee on
Ministers Powers (Cmnd 4060) and is now unpopular. However, they may still
be found in older legislation.

7.4.4

Time limit clauses

Perhaps a more acceptable method of limiting judicial review within certain

contexts is by the use of clauses which limit the period of time within which a
decision can be challenged. Certain decisions are of such a nature that finality
is required. This is particularly so in the context of, for example, compulsory
purchase and planning decisions where the consequence of the decision may
well be demolition and/or the construction of buildings. The implications of
such a decision being subject to challenge once works have progressed in
reliance upon it are obvious. Such clauses, however, also often limit review by
reference to stated grounds on which review is permissible. This aspect is more
questionable. Such clauses raise two issues:
whether such a decision can be challenged outside the stated time on any
grounds whatsoever;
whether such a decision can be challenged within the stated time on the
stated grounds alone and on no other grounds.
In Smith v East Elloe Rural District Council (1956), a challenge to a compulsory
purchase order out of time on the ground of bad faith was rejected by the
House of Lords. The statute allowed challenge within six weeks on the basis
either that the order was not within the powers of the Act or that a requirement
of the Act had not been complied with. Lords Reid and Somervell concluded
that challenges for fraud could be made at any time and were not precluded by
the time clause. The majority, however, held that challenge was precluded after
the 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 was
made, in particular, that Mrs Smith continued to have a remedy in the tort of
deceit against the officials (should such conduct be established) and, therefore,
a remedy lay in damages via an alternative route. Lord Morton went even further and asserted that challenge within six weeks could be mounted only for
breach of express statutory requirements and not any unlawful action.
(In Smith v Pyewell (1959), proceedings were instituted against the clerk to
the local authority.)
In R v Secretary of State for the Environment ex parte Ostler (1977), a challenge
was again made to a compulsory purchase order out of time. The applicant
sought to overcome the time limit by arguing that an agreement had been kept
from him. Had he known of this agreement, he would have challenged the
decision within the time limit. The Court of Appeal nonetheless upheld the
time limit and disallowed the application. Lord Denning MR noted in particular the partial nature of the ouster clause (so distinguishing Anisminic on the
basis that there was there an attempt to oust the jurisdiction of the court completely), the nature of the proceedings (administrative in Smith but more judicial in Anisminic) and the fact that works had commenced in reliance on the
decision. The reasoning of Lord Denning here might not be thought to be
entirely convincing. To accept a limited ouster on the basis that it is not a complete ouster is a strange form of reasoning. The nature of the decision administrative versus judicial begs the old question of what is a judicial decision
and reflects a distinction which Lord Reid had tried to lay to rest, at least in the
context of natural justice, in Ridge v Baldwin (see above, pp 12627). There is
also at least some force in the argument that Parliament, if asked at the time of
the passing of the relevant legislation whether it intended to protect a decision
made in bad faith, would have denied such an intent. Perhaps an intellectual
rationale should simply not be attempted but the pragmatic response accepted.
In R v Cornwall County Council ex parte Huntington; R v Devon County Council
ex parte Isaac (1994), the councils had modified definitive maps to show a right
of way and a by-way respectively over the applicants land. Such modifications
were subject to confirmation by the minister and that confirmation had to be
preceded by an inquiry or a hearing. An order could be challenged within 42
days of the notice of confirmation, subject to which the validity of an order
shall not be questioned in any legal proceedings whatsoever. An attempt by
the applicants to challenge the modifications prior to confirmation failed. The
clause 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 clauses 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 1958
and 1972) provides:
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(a) any provision in an Act passed before 1 August 1958 that any order or
determination shall not be called into question in any court; or
(b) any provision in such an Act which by similar words excludes any of the
powers of the High Court,
shall not have effect so as to prevent the removal of the proceedings into the
High Court by order of certiorari or to prejudice the powers of the High Court
to make orders of mandamus.

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

7.5

Conclusion

The judicial response to exclusion clauses illustrates graphically the contradictions in administrative law in particular, the courts insistence on their assertion that the function of statutory interpretation is to fulfil the intentions of
Parliament. The intention of Parliament in many of these cases is to curtail to
the highest degree the possibility of judicial intervention. However, this cannot,
of course, be publicly stated for fear of incurring allegations of conduct in defiance of the rule of law, itself a principle much used by the courts to justify their
interventionist stance. It seems that, however large the sledgehammer used by
Parliament, 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 in
excluding review is less a matter of semantics than of judicial attitude and legislative response.

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SUMMARY OF CHAPTER 7

STATUTORY REMEDIES AND EXCLUSION

OF JUDICIAL REVIEW

Statutory remedies
Parliament may provide a complainant with a remedy at the time it invests a
body with a decision-making power. Such a remedy may take the form of an
appeal which may be general or on a point of law only. Such statutory remedies are often restricted by the statute itself by reference to, for example, the
persons to whom the remedy is available, the grounds on which the remedy is
available 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 the
exception of habeas corpus) are discretionary, the courts may exercise their discretion to refuse such remedies if other adequate remedies are available.
Recent authority suggests that, as a general rule, an applicant will be
required to exhaust statutory remedies available before pursuing an application for judicial review (R v IRC ex parte Preston (1985)).
The remedies available by way of judicial review are themselves available
in combination or in the alternative.

Exclusion of alternative remedies

The question here is whether the availability of a statutory remedy may
exclude completely the availability of alternative remedies (not simply that
statutory remedies must be exhausted before an application for judicial review
is pursued).
The availability of a statutory remedy will not per se exclude judicial review
and, in order to preclude access to alternative remedies, the language of the
statute must be clear. There is a presumption of statutory interpretation against
erosion 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 prevent resort to judicial review. This may be attempted indirectly by conferring a
discretion on the decision-maker which is drafted in wide terms (either objective 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 challenged, particularly so where the context of the decision requires finality, for
example compulsory purchase and planning decisions. The courts have accepted that such clauses may well be effective to preclude judicial review once that
time limit has expired even where a challenge is based on the ground of bad
faith (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 exclusion
clause contained in an Act passed before 1 August 1958 shall not have effect to
preclude certiorari or mandamus. Under s 12(3), this provision does not apply,
however, to determinations of a court of law or to time clauses.

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