Is it Legitimate for Parliament to Legislate Restrictions on Judicial Administrative Review?

Private: Kohelet

An interesting judgement from the British court is of particular relevance to the discourse in Israel: Is legislation that deems some government agencies’ decisions immune to judicial review acceptable, or does such legislation contradict supra-constitutional norms?

One line answer:

The rule of law principle binds all government branches, including the Courts – the leading principle of the British system is the supremacy of parliamentary legislation.

This decision is particularly interesting in an Israeli context. Although England has no constitution, the argument was put forth that a certain law must be repealed on the grounds that it contravened basic principles such as the right to access the courts. The British court, however, adhered to the principles of the people’s sovereignty and of the rule of law: state authorities derive their authority from the people’s sovereignty; therefore, without democratic authorization, there is no way to override parliamentary law.

What was the case?

British citizens seeking to challenge a decision made by certain government agencies (those charged with Tax and Chancery, Lands, and Immigration and Asylum matters) must, by law, address the body known as the Upper Tribunal, which is an administrative court, i.e., a government body that operates under the Ministry of Justice rather than under the judiciary. This tribunal hears appeals on decisions made in those domains.

In 2011, the British Supreme Court ruled in the Cart case that Upper Tribunal decisions are subject to judicial review, and thus can be appealed against in Court and nullified.

In 2020, the British government formed the Faulks Committee to review administrative law and recommend improvements. The committee’s report recommended, among others, to reverse the option of judicial review of Upper Tribunal decisions, on the grounds of efficiency.

Following the recommendations, the British Parliament legislated an amendment to The Tribunals, Courts and Enforcement Act (2007) which established that the Upper Tribunal’s refusal to grant permission to appeal its decision is immune from judicial review. In other words, the law reverted to the pre-Cart 2011 era. In the Israeli press, such laws are called “”Bagatz” (High Court) bypass laws”.

The court case in question was that of a citizen of the Philippines named Oceana, who arrived in England on a student visa and requested permission to remain in the country after it expired. Her request was rejected, and the administrative court- the Upper Tribunal – upheld the decision to reject and declared its decision final with no option of appeal.

Oceana turned to the High Court as the court of first instance, in a petition to reconsider her visa request. The plaintiff claimed that the ouster clause barring administrative decisions from judicial review contravened the principle of “judicial supervisory authority”, thereby granting the Court the authority to ignore the law on the grounds of common law principles.

The Court unequivocally rejected this claim: Parliament, in primary legislation, clearly delineated the boundaries of judicial review, and the Court is authorized to act strictly within the bounds of law. There is no room for the Court to ignore parliamentary legislation.

From the verdict:

“The legal position under the law of England and Wales is clear and well

established. The starting point is that the courts must always be the

authoritative interpreters of all legislation including ouster clauses. That is a

fundamental requirement of the rule of law and the courts jealously guard this

role. However, the rule of law applies as much to the courts as it does to

anyone else. That means that under, our constitutional system, effect must be

given to Parliament’s will expressed in legislation. In the absence of a written

constitution capable of serving as some form of “higher” law, the status of

legislation as the ultimate source of law is the foundation of democracy in the

United Kingdom. The most fundamental rule of our constitutional law is that

the Crown in Parliament is sovereign and that legislation enacted by the

Crown with the consent of both Houses of Parliament is supreme. The

common law supervisory jurisdiction of the High Court enjoys no immunity

from these principles when clear legislative language is used, and Parliament

has expressly confronted the issue of exclusion of judicial review, as was the

case with section 11A. In short, there is no superior form of law than primary

legislation, save only where Parliament has itself made provision to allow that

to happen.”

(Oceana, R (On the Application Of) v Upper Tribunal (Immigration And

Asylum Chamber) (Rev1) [2023] EWHC 791)

By: Adv. Avraham Russell Shalev

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