Hanna Wilberg: The Limits of the Rule of Law’s Demands: Where Privacy International Abandons Anisminic

Statutory ouster of judicial review has long been considered to offend the rule of law.  But just what does the rule of law demand in this context, and is ouster really inconsistent with those demands in all circumstances?  Some interesting answers to these questions feature in R (Privacy International) v Investigatory Powers Tribunal.

At least since R v Hull University Visitor ex p Page, the landmark decision in Anisminic Ltd v Foreign Compensation Commission has been understood as establishing that all errors of law are jurisdictional in the sense that they render decisions ultra vires (and error of law in this context encompasses all grounds of judicial review).  Flowing from that position, it had generally been assumed that any statutory ouster of judicial review must be contrary to the rule of law.

Discussions of ouster have focused on whether and to what extent Parliament has power to achieve this (the constitutional issue), and if so, whether it has achieved it in the particular legislation (the statutory interpretation issue).  In Privacy International, these were the two questions posed for the Supreme Court’s determination.  On the interpretation issue, as is well known by now, a majority of 4 to 3 held that the purported ouster of judicial review of decisions of the Investigatory Powers Tribunal (IPT) was ineffective.  The words in s 67(8) of the Regulation of Investigatory Powers Act 2000 (RIPA) were not sufficiently clear to displace the strong presumption against ouster of judicial review.  This amounts to a ringing reaffirmation of Anisminic orthodoxy on the interpretation issue – hence the title of a blog post by Jonathan Metzer: “Anisminic 2.0.  On the constitutional issue, the plurality judgment indicated a view that Parliament probably lacked the power to effectively oust review at all. That would amount to going beyond Anisminic and abandoning its constitutional orthodoxy, but it was obiter and not supported by a majority.

What is less obvious but especially interesting in the Privacy International decision is a different departure from Anisminic.  Two of the judgments, together representing five of the seven members of the Court, abandon the Anisminic-derived absolutism about the demands of the rule of law: they accept some limits to the required scrutiny for errors of law.  (The decision in R (Cart) v Upper Tribunal (Public Law Project Intervening)  had already taken this step, but only in the particular context of the new comprehensive tribunal system.)  The two judgments disagree, however, on the nature of the acceptable limits.  In this post, I want to draw attention to this aspect of the case.

The limits of the rule of law’s demands: two different versions

The two judgments that qualify the judicial scrutiny required by the rule of law are the plurality judgment given by Lord Carnwath (joined by Lady Hale and Lord Kerr) and the dissenting judgment of Lord Sumption (joined by Lord Reed).  These two judgments disagree on whether the ouster clause in this case was compatible with the demands of the rule of law – essentially because they focus on different aspects of the rule of law.  But both take the view that some limits on review can be consistent with the rule of law.

Lord Carnwath expressly considers that the Anisminic-derived categorical approach to the scope of review based on notions of jurisdiction and nullity should give way to a more contextual balancing approach (a point noted by Paul Daly).  The approach he favours is an extension of the approach established in Cart for determining the scope of review of the Upper Tribunal: the question is what degree and type of scrutiny amounts to sufficient and proportionate protection of the rule of law (paras 127-134).

A crucial part of the answer in Lord Carnwath’s view is that access to the general courts is always necessary, in order to ensure that statutory bodies do not develop a “local law” different from the general law of the land – in other words, it is necessary for ensuring consistent application of the law.  That is the sense in which ouster of judicial review of the IPT’s decisions is inconsistent with the rule of law in his view (paras 138-139).  The restrictions that can in some contexts be consistent with the rule of law include time limits on review, and limits on the scrutiny of questions of application as distinct from interpretation (paras 133-134).  Limits of this kind, however, were not at issue in this case.  As far as the IPT is concerned, he suggests elsewhere in passing that permission for judicial review of its decisions should be granted only in cases raising points of general significance (para 112).

Lord Sumption’s dissenting approach involves departing from the Anisminic-derived approach to the scope of review in a different way (paras 182-188): in essence, he would re-introduce the pre-Anisminic distinction between jurisdictional errors and errors within jurisdiction.  This solution was also adopted in a slightly different context in Cart by the Court of Appeal, but was rejected there by the Supreme Court.  The question in each case, Lord Sumption says, is to identify the statutory decision-maker’s “permitted field”.

His version of the distinction differs from the pre-Anisminic position, in that he would answer the question about the decision-maker’s jurisdiction or permitted field by reference to the nature and function of the decision-making body.  Executive or administrative decision-makers must be subject to full scrutiny for questions of law: their “permitted field” is confined to applying the correct legal position, as determined by the courts.  In contrast, bodies exercising judicial functions parallel to the High Court have power to interpret the law they apply: their “permitted field” is confined only by features that go to jurisdiction in the narrow pre-Anisminic sense (which in Lord Sumption’s version include breaches of natural justice: para 205).  This can be seen as endorsing the suggestion of Lord Diplock in In re Racal Communications Ltd.

It is on this basis that Lord Sumption considers the ouster ought to be given effect in the circumstances of this case: the IPT is a judicial body with the wide “permitted field” that flows from this function, and the challenge in issue alleged an ordinary error of law, well within that permitted field (paras 197-198).  Only if the IPT went outside that permitted field would the ouster no longer protect its decision, because only then would such effect render the IPT a law unto itself.

The rule of law reasoning goes to both the interpretive and the constitutional issue

Both judgments reaffirm the very strong interpretive presumption against ousting judicial review (although they do have different approaches to this): only exceptionally clear and explicit wording could achieve this.  Both further agree on the qualification that the presumption applies only where ouster would be contrary to the rule of law.  The main reason for the dissent, then, lies not in any fundamental difference between the approaches to interpreting ouster clauses.  Rather, it lies in the different views outlined above as to whether the ouster of judicial review in this particular case is consistent with the rule of law.

On the constitutional issue, as already noted, Lord Carnwath’s plurality judgment in obiter departs from the orthodoxy that the presumption against ouster is rebuttable by sufficiently clear words, instead taking the view that Parliament lacks the power effectively to oust judicial review.  However, just as the interpretive presumption only applies to ouster that is inconsistent with the rule of law, for the plurality the same goes for this constitutional limit on Parliament’s power.  Even in the face of the clearest wording, it is “ultimately a matter for the court to determine the extent to which [an ouster] clause should be upheld”, and this turns on “the level of scrutiny required by the rule of law” (para 144).  In this judgment, the discussion of whether the s 67 ouster is compatible with the rule of law is found in the second part devoted to the constitutional issue.

Implications: confirming that channelling of judicial review is acceptable?

Where all of this leaves the law on ouster and the rule of law is open to debate: Lord Carnwath’s discussion is part of obiter comments by a plurality rather than a majority, while Lord Sumption’s is part of a dissent.  Given the differences between the two judgments as to the demands of the rule of law in this area, it may be going too far to say that the five judges who subscribed to these two judgments represent a majority and hence binding authority on any aspect of the rule of law issue.  However, even short of any binding authority, it is surely significant that five of seven members of the Court in this case abandoned the Anisminic-derived assumption that the rule of law always requires judicial review for all errors of law.

This recognition of qualifications to the demands of the rule of law helps make sense of limits on judicial review that have long been accepted (a point touched on by Lord Carnwath).  The most commonly noted accepted limits are statutory time limits (see Smith v East Elloe Rural DC  and R v Secretary of State for the Environment, ex p Ostler.  A similar accepted limit is found in provisions delaying access to review until a decision-making process has been completed (see R v Cornwall County Council, ex p Huntington [1994] 1 All ER 694).  In both types of cases, courts have accepted that there can be good reasons for such limits.

The law is and has been less certain on the acceptability of limits on review in the form of requiring recourse to alternative statutory avenues, either before judicial review is available or even as the sole available recourse.  In the UK, exhaustion of other remedies is a general requirement quite apart from any ouster clause.  This merely delays rather than excludes judicial review.

In jurisdictions such as New Zealand, where there is no such general requirement to exhaust other remedies, courts have given effect to ouster clauses that take this form of requiring use of alternative statutory avenues.  The condition is that those alternatives must represent adequate avenues of scrutiny and recourse, and that appears to require access to the High Court in some form and at some stage (see Tannadyce Investments Ltd v Commissioner of Inland Revenue).  It remains uncertain and disputed what counts as adequate avenues of recourse (see H (SC 52/2018) v Refugee and Protection Officer (overturning the Court of Appeal decision discussed by Daly).

In the UK, an obiter in R (A) v Director of Establishments of the Security Service went even further.  The Court gave effect to another provision of RIPA, s 65, that confers exclusive jurisdiction over Human Rights Act 1998 claims against the intelligence services on the IPT.  The main reason was that this provision ousted no pre-existing remedy (having been enacted as part of the same package as the HRA itself).  The relevant reason for present purposes, however, was that s 65 did not oust scrutiny of the intelligence services, but merely allocated that scrutiny to another body of like standing and authority to the High Court (para 23).  In an obiter dictum that is now expressly overruled by Privacy International (para 109), Lord Brown further considered that there was no constitutional objection to the s 67 ouster of judicial review of the IPT (para 23).  In relation to HRA claims, that would have meant that the IPT’s jurisdiction was both exclusive and final, rather than merely being a statutory avenue that had to be exhausted before judicial review could be sought.

All these statutory or common law limits operate to “channel” rather than exclude judicial review (see Paul Daly here and here).  That can be seen as rendering at least some of them compatible with the demands of the rule of law.  The parts of the Privacy International judgments outlined above lend support to this line of argument.  The plurality judgment, however, unlike Lord Sumption’s dissenting judgment, does not support substitution of alternative statutory avenues other than the High Court as the exclusive and final remedy.

With many thanks to Paul Daly, Mark Elliott, David Feldman, Marcelo Rodriguez Ferrere and Alison Young for helpful comments on an earlier draft of this note.

Hanna Wilberg, Associate Professor, Faculty of Law, University of Auckland

(Suggested citation: H. Wilberg, ‘The Limits of the Rule of Law’s Demands: Where Privacy International Abandons Anisminic‘, U.K. Const. L. Blog (11th Sept. 2019) (available at https://ukconstitutionallaw.org/))

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Mike Gordon: Privacy International, Parliamentary Sovereignty and the Synthetic Constitution

The case of R (Privacy International) v Investigatory Powers Tribunal  is the latest in a series of high profile judicial engagements with the doctrine of parliamentary sovereignty.  The case concerned the legal status of s.68(7) of the Regulation of Investigatory Powers Act 2000, and in particular, whether this provision constituted a successful attempt to oust the jurisdiction of the High Court to hear challenges to the decisions of the Investigatory Powers Tribunal by judicial review.

The Supreme Court divided this question into two parts, and the constitutional doctrine of parliamentary sovereignty was implicated in each strand in fundamental ways: first, in the specific context of interpreting Parliament’s legislative intention in enacting a provision which purported to immunise decisions of the Investigatory Powers Tribunal from further legal challenge; and second, in relation to whether it can ever be legally possible, in general, for Parliament to enact an ouster clause of this kind.

This post reflects on the judicial attitudes to parliamentary sovereignty evident in Privacy International, the force of this approach when considered in the context of other recent case law on this doctrine, and what this might suggest about the broader use of constitutional principles in the UK Supreme Court.  There are reasons to doubt that the majority decision gives appropriate weight or effect to the idea of legislative sovereignty.  Yet more significant than the specific outcome of Privacy International is the overarching constitutional framework in which the questions raised in this case are addressed.  Privacy International shows this framework is still being developed in the courts, and I will argue that this process of constitutional construction needs to be subject to critical scrutiny.

Parliamentary Sovereignty and Statutory Interpretation

The question of the proper approach to the interpretation of ouster clauses has long been a challenging one, since at least the (in)famous decision of the House of Lords in Anisminic v Foreign Compensation Commission.  In that case, a majority of the Law Lords held that a provision to establish that ‘[t]he determination by the commission of any application made to them… shall not be called in question in any court of law’ was ineffective to prevent judicial review.  In an exercise of linguistic creativity, the House of Lords concluded that where the Commission made an error of law while allocating compensation to corporate entities following the Suez crisis, it exceeded its jurisdiction – such an application had not therefore been determined and rendered immune from further legal challenge, but was instead a ‘purported determination’ which the courts could declare a nullity.

For those who were already unconvinced by the legal magic at the heart of Anisminic, the result of Privacy International will appear similarly challenging, for the ouster clause in s.68(7) of RIPA seemed explicitly designed to cut off this line of argument.  It provided that ‘determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’.  This represents an upgrading of the language rejected in Anisminic in a number of ways, including adding ‘awards, orders and other decisions’ to the category excluded from legal challenge, and attempting to immunise even determinations touching on the jurisdiction of the Tribunal from further review.  Yet by a 4-3 majority in the Supreme Court, this statutory attempt to confront the logic underlying the decision in Anisminic was to fail.

This generates a problem from the perspective of parliamentary sovereignty.  It is well established that, as Lady Hale put it when giving the unanimous judgment of the court in R (Black) v Secretary of State for Justice, ‘[t]he goal of all statutory interpretation is to discover the intention of the legislation’, and ‘[t]hat intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose’ [36].  The words used by Parliament in s.68(7) are clear, and understood in the context of the decision in Anisminic, it seems even more clear that their purpose is to oust judicial review.  In confirming an alternative statutory construction – one which is the opposite of what Parliament seems to have intended – the Supreme Court appears to be challenging the legislature’s legally unlimited law-making authority.

Of course, as the considerable body of case law and commentary around Anisminic demonstrates, we are long past the point where ouster clauses can be assessed on face value.  If the provision in question in Privacy International is compared with that in Anisminic, it is clearly a more elaborate attempt to exclude judicial review.  Yet other comparators also exist: the ultimately abandoned draft clause 108A proposed in clause 14 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003 (as introduced in the House of Lords) ran to 60 lines, prompted a public stand-off between the judges and the New Labour government, and (many believe) led to Lord Steyn, Lord Hope and Baroness Hale overtly speculating in R (Jackson) v Attorney General  about the possible existence of common law limits on parliamentary sovereignty.  Judged from that vantage point, the ouster clause in Privacy International starts to look like a very half-hearted attempt to avoid established precedent, a claim developed in further detail by Adam Tucker.

As the delicately balanced 4-3 decision in Privacy International shows, there is always scope for disagreement about Parliament’s true intention when enacting legislation, and this case will provide further fuel for the debate about judicial fidelity to statutory language.  The stakes are certainly lower in this context, given s.68(7) has already been repealed, showing a lack of deep rooted legislative commitment to the always controversial decision to try to exclude judicial review.  It is also not clear how meaningful in practice it will be to expose the decisions of the Investigatory Powers Tribunal to additional legal scrutiny.  The Tribunal is already staffed by senior judges from the same ranks as those who will hear applications for judicial review, and (by s.67(2)&(3)(c)) it is explicitly required to apply the same principles as would be applicable in judicial review.  Whether this will offer any substantial additional accountability for the activities of the intelligence services scrutinised in the Tribunal, or will simply elongate the standard avenues of legal challenge, remains to be seen.

Yet the extension of the Anisminic line of case law in Privacy International also comes at a cost, in terms of the public understanding of the law.  Even if it is defensible to say that Parliament should by now be aware of the need for absolute precision to demonstrate an intention to exclude judicial review, Privacy International confirms we are well past the point where clear words are not enough to achieve the desired effect.  If the monstrosity of clause 108A from 2003 now constitutes the bar to successfully provide that an actor other than the ordinary courts can have the final say in a decision-making process, we have surely reached an intolerable level of artificiality in the interpretation of legislative language, and, from a rule of law perspective, the regrettable position where only an elite understanding of legal doctrine will provide the necessary context to comprehend the meaning of statute law.

To oust judicial review may always be a controversial policy choice, but there is no reason it cannot sometimes be a legitimate one depending on the socio-economic context, and the design of the decision-making process.  Crucially, it is also a policy choice that must remain open to a Parliament in possession of legal sovereignty, even if subject to increasingly contrived requirements of clarity.  Yet Privacy International also features a contribution to the contemporary judicial tradition of doubting that full scope of Parliament’s legislative power, as a supplement to the majority’s unwillingness to accept the ordinary meaning of Parliament’s legislative language.  This reveals a central tension in the reasoning of the leading judgment, in so far as it is premised on the idea that there is simply a presumption against interpreting legislation in such a way as to permit the exclusion of judicial review, but at the same time suggests this presumption is in fact a disguised prohibition established and enforced by the courts.

Parliamentary Sovereignty and Rule of Law Limitations

The most acute challenge to parliamentary sovereignty appears in the judgment of Lord Carnwath, with whom Lady Hale and Lord Kerr agreed.  These comments are minority obiter dicta, for as Lord Carnwath noted, it was not necessary to decide this second issue, and Lord Lloyd-Jones concurred with his leading judgment only as to the interpretation of s.68(7).  Yet despite their doubly qualified authority, these comments will no doubt attract considerable attention because, if accepted, they would amount to a rule of law constraint on the sovereignty of the legislature.  According to Lord Carnwath:

I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law. [144]

Lord Carnwath’s attempt to distinguish his elevation of the rule of law from the minority obiter dicta in Jackson is unconvincing – the relationship between Parliament and the courts cannot simply be ‘governed by accepted principles of the “rule of law”’ [119] in a constitutional system which allocates legally unlimited law-making power to the legislature.  Instead, the constitutional status of the rule of law is exactly what is in question.  And this is regardless of the fact that Parliament has negatively affirmed the enduring existence of the ‘constitutional principle of the rule of law’ in s.1 of the Constitutional Reform Act 2005 – this minimalist recognition certainly cannot be seen as an uncontroversial invitation for the courts to ‘determine’ the ‘content and limits’ [121] of a multi-faceted constitutional norm which has complex legal, political and (arguably) moral dimensions.

Lord Carnwath is therefore contributing to, rather than avoiding, the ‘debate’ first manufactured in Jackson, and embellished in Axa, Moohan, and Public Law Project, as to whether there are judicially defined limits on the content of an Act of Parliament.  To assert that ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’ [131] is necessarily to reject parliamentary sovereignty, which functions to establish exactly the opposite state of affairs.

It would be easy to read too much into these claims, which add to the volume of judicial uncertainty about parliamentary sovereignty, but take us no further in principle than previous speculation about the possibility of common law review of primary legislation in exceptional circumstances.  From one perspective, such repetition of the idea that the rule of law has the potential to trump parliamentary sovereignty might be seen to add weight to such judicial claims.  However, by regularising these assertions, but only as an abstract possibility, seemingly never to be acted upon, the opposite effect is arguably being achieved – the emptiness of the rhetoric becomes ever more evident, as familiarity diminishes their force.

Perhaps more significant than whether the courts possess the power hypothesised by some judges, which runs contrary to the fundamental principle of the UK’s constitutional order, is the broader inconsistency in approach this reveals. In Privacy International parliamentary sovereignty is (for a minority) a principle potentially in dispute, if it were ever to collide unavoidably with the rule of law.  Yet in other recent cases, the courts have seemed far less troubled. In Miller, parliamentary sovereignty was an essential constitutional principle for the majority when it could be used to constrain the activities of the executive.  And in the Legal Continuity (Scotland) Bill Reference, parliamentary sovereignty was absolutely crucial when settling a clash with the devolved administration in Scotland in favour of the UK’s central institutions (and this was for an almost identically constituted Supreme Court to that which decided Privacy International, with the only change in the former case being Lord Hodge sitting in place of Lord Wilson).

The legacy of Privacy International is not, therefore, that it heralds the limitation of Parliament through the rule of law, and the abandonment of parliamentary sovereignty which would inevitably result.  On the contrary, such speculation about this doctrine is not determinative of the scope of parliamentary legislative authority, for if Parliament truly is sovereign, this is not a matter the courts can decide.  Yet the case is revealing in so far as it provides a clear insight into the constitutional framework within which many judges increasingly see ideas of legislative authority operating.

Privacy International and the Synthetic Constitution

The critical problem with the body of doubts about parliamentary sovereignty to which Privacy International now adds is that it presents only a partial view of the UK constitution.  This is a constitution in which legal principles are developed in isolation from the political dimensions of public power, attributed authority over and above political (and especially democratic) principles, and absent the input of the political institutions.  The artificiality of this approach is most apparent in attempts to establish the courts as the potentially ultimate constitutional authority in some contexts, but to cling closely to parliamentary sovereignty in others.  The effect is that a synthetic vision of the constitution is increasingly evident and prevailing in the UK’s highest courts – it is a framework which is superficially plausible, perhaps in some ways even attractive, but equally one which we are not compelled to accept as absolute or authentic.

Lord Carnwath’s leading judgment in Privacy International is a further contribution to this trend, not just in the way it perceives the limitation of parliamentary sovereignty, but in framing this as part of a ‘more flexible approach to the relationship between the legislature and the courts’  which is ‘wholly consistent with the modern constitutional settlement’ [131] . The status of parliamentary sovereignty is an emblematic issue given its function is to establish the constitutional primacy of political decision-making in the pre-eminent democratic institution of UK central government.  Yet conceptualising the limitation of parliamentary sovereignty is just one part of a broader attempt to reconstruct the UK’s constitutional framework.  Other core elements of this scheme are the judicial supposition of a scheme of ‘constitutional statutes’ with enhanced legal status, from Thoburn onwards, and the elaboration of a distinct category of ‘constitutional principles’ in cases such as HS2, again with additional legal weight attaching to that designation.  And prime among these principles is the rule of law, which after the decision in Evans, coupled with that in Privacy International, appears ever more focused on vindicating the significance and finality of judicial oversight of decision-making, regardless of the intentions of the UK’s legislative body in establishing alternative arrangements.

The manner in which this synthetic constitution is being constructed through judicial action, and presented as a ‘modern constitutional settlement’, obscures the fact that there should be a choice: we are not compelled to accept the structures being developed by the courts, which are far from immutable or inevitable.  It is important that we recognise the contestability of this evolving framework, retain the scope to scrutinise the core components and characteristics of this scheme as they are webbed together, and the capacity to challenge the right of the courts to author it.

It is not therefore sufficient to question the interpretation of legislation, or the extent to which parliamentary sovereignty is now limited through the rule of law.  Instead, we can also challenge the authenticity of the constitutional framework in which these issues are being judicially confronted, rather than feel obliged to accept this vision on its own terms.  For at the very least, Privacy International provides further confirmation that this framework is quickly coming to dominate, and arguably also distort, our understanding of key constitutional norms, values and relationships.

I am grateful to Adam Tucker for very helpful comments on this post.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

(Suggested citation: M. Gordon, ‘Privacy International, Parliamentary Sovereignty and the Synthetic Constitution’, U.K. Const. L. Blog (26th Jun. 2019) (available at https://ukconstitutionallaw.org/))

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