Admin law – ouster clause

In the Caribbean Commonwealth Constitutions, citizens are afforded the right to access the courts in complaint of any abuse of state power, and it is further acknowledged that that right is not be impaired unnecessarily. On the other hand, stands another constitutional principle that parliament has the sovereign right to make laws for the good governance of the country and should not be hindered by review from the courts. Consequently, statutes have been formulated to fetter and limit the court's jurisdiction.

One form of legislation designed to restrict or prevent judges from exercising the power of review of public officials is ouster clauses. Ouster clauses are found in the constitutions of Commonwealth Caribbean countries and may also be the product of the legislative process. These clauses come in two broad categories. The first of such clauses are all embracing and final in nature. This means that a public bodies' decision is final and conclusive and cannot be enquired into by any court, even if the public body has not acted in good faith.

The second clauses are limited as to time. This clause imposes a period or limit within which an individual may seek judicial review. Ouster clauses are of extreme importance as they relate to the decision making process, as it is needed to expedite the process of social and economic advancement and most importantly that public policy may require that finality be brought to a course of action. These explanations speak to the efficiency of the administration of government and the reason draftsmen designed 'judge-proof' legislations.

However, these clauses are subject to much legal controversy; especially because they attempt to deny the subject access to the courts for redress of perceived illegality and more importantly, it aims to usurp the court's power of final adjudication, a power that they guard jealously. It is believed that if statutory clauses were given literal effect, then the tribunals would be a law unto themselves and their decisions were to be made 'final' and could not be reviewed by the courts, even in the face of illegality and wrongdoing.

Accordingly, a boost to override statutory ouster clauses was started by Lord Denning in the case of Taylor v National Assistance Board, where he stated, "The remedy is not excluded by the fact that the determination of the Board is by statute made 'final': Parliament only gives the impression of finality to the decisions of the board on the condition that they are reached in accordance with the law. " This meant that if a Tribunal's decision was wrong in law, then it would be void.

Lord Denning confirmed his view of the finality clause in ex p. Gilmore, by stating, "The Act of 1946 provides that 'any decision of a claim or question . . . shall be final. ' [But, it is] very well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words. The word 'final' is not enough. That only means 'without appeal. ' It does not mean 'without recourse to certiorari.

' It makes the decision final on the facts, but not final on the law. It is settled practice that at common law, the courts were required to follow clear legislative intent. However, it has been the practice of many judges to say that parliament never intended to deprive the court of total jurisdiction if the public body's wrongdoing was discernible. Thus, the courts have found various reasons and methods to circumvent clauses that seek to cut down their power of review.

This was shown in the case of Anisminic, where it was held that the decision of an administrative tribunal could be set aside on jurisdictional grounds if it asked itself the wrong question, or made an error of law which took it outside its jurisdiction. In such a situation, the ouster clause would not protect the decision from challenge. Other instances where ouster clauses would not be honoured are where: a) there is an improper composition of a tribunal b) absence of locus standi c) contravention of natural justice d) improper purposes and irrelevant considerations e) fraud f) and others

The case of Anisminic has shown that even in the face of the clear and unambiguous wording of an ouster clause, the courts will not be prevented from inquiring into the decisions of public bodies, as in this case the statute stated that, "the determination of the tribunal… shall not be called in question in any court of law. " Nevertheless, it can be seen that judges like Lord Denning who recognizes the intention of the framers of ouster clauses to cut down the court's powers, when he stated that 'they were not to be outdone' have consistently waged a war for the expansion of the court's jurisdiction.