Week 20 Public: Can Parliament prevent judicial review?

How does the government generally respond to Judicial Review (JR) decisions?

They tend to comply but may also retake decisions or legislate to overturn outcomes.

What terms do Harlow and Rawlings use to describe government reactions to unfavourable JR outcomes?

'Striking back' and 'clamping down'.

Name one indirect method the government uses to limit JR.

Granting very broad discretionary powers.

How does the Immigration Act 2014 limit judicial consideration?

Judges must give 'little weight' to private life factors.

What did the JCHR say about the Immigration Act 2014?

It was a 'significant legislative trespass into the judicial function.'

What does Section 2(1) of the Safety of Rwanda Act 2024 require courts to do?

Treat Rwanda conclusively as a safe country.

What other techniques are used to restrict JR access?

Moving JR cases to lower courts, limiting legal aid, reducing time limits, narrowing standing.

Can Parliament prevent Judicial Review altogether?

This raises a clash between Parliamentary supremacy and the rule of law; it is heavily contested.

What is an "as if enacted" clause and was it effective?

A clause treating decisions as if made by Parliament — it did not stop JR (R v Minister of Health, Ex p Yaffe).

What does a "shall be final" clause mean?

Final on facts, but not final on the law (R v Medical Appeal Tribunal, ex p Gilmore).

What about "conclusive evidence" clauses?

They didn't prevent review for unlawfulness (Johnstone v Chief Constable of RUC).

What was the significance of Anisminic v FCC [1969]?

It showed ouster clauses cannot prevent JR where there is a jurisdictional error of law.

What distinction did Anisminic make?

Between 'actual determinations' and 'purported determinations'.

What must Parliament do to fully exclude JR?

Use clear, unambiguous statutory language.

What was the effect of Section 7(8) of the Interception of Communications Act 1985?

It sought to block appeals or questioning of tribunal decisions.

Why was the 2003 Asylum and Immigration Bill controversial?

It tried to exclude JR even for errors of law or breaches of natural justice; it was withdrawn after backlash.

What issue arose in R (Privacy International) v Investigatory Powers Tribunal?

What issue arose in R (Privacy International) v Investigatory Powers Tribunal?

How did the Supreme Court rule in Privacy International?

By 4/3 majority, they held s 67(8) did NOT oust JR.

What principle was reaffirmed by the Supreme Court in Privacy International?

Strong presumption against ousting High Court's supervisory role.

What did Lord Carnwath say about Parliament’s ability to exclude JR?

Parliament must use clear wording; courts retain final say on interpretation.

What does Section 11A of the Tribunals, Courts and Enforcement Act 2007 state?

Refusal of permission to appeal by Upper Tribunal is final and not subject to JR.

How did Saini J interpret Section 11A in Oceana v Upper Tribunal [2023]?

Clear language must be respected; Parliament’s will is supreme without a written constitution.

What did the Court of Appeal confirm in LA (Albania) [2023]?

Accepted Saini J’s approach — no JR if clear exclusion language is used.

What did the Calling and Dissolution of Parliament Act 2022 do regarding prerogative powers?

Revived them and made their exercise non-justiciable.

What controversial provision is in the Safety of Rwanda Act 2024?

Courts must conclusively treat Rwanda as safe, except based on individual circumstances.

How does the Safety of Rwanda Act 2024 interact with the Human Rights Act?

Disapplies key sections like s2, s3, s6, and s9 for this Act.

What is meant by 'entrapment' in government reactions to JR?

Governments provoke legal challenges to gain political advantage whether they win or lose.

How does JR reform relate to "NIMBYs"?

Governments cite NIMBYs blocking projects as a reason to reform JR.