Alison Young: Prorogation, Politics and the Principle of Legality

Constitutional lawyers often point to key cases as milestones in public law. Recently, the Supreme Court decision in Privacy International joined the ranks of leading public law cases, adding to the cases discussing ouster clauses and the extent to which courts can review decisions of inferior courts and tribunals in Anisminic and Cart. As Privacy International also demonstrated, milestone cases often take on a life of their own. The judges in Anisminic may be surprised at how the case was later interpreted. But this is how the common law works. Anisminic was interpreted in a series of later cases to demonstrate that all legal errors are jurisdictional errors. This then became part of the common law.

CCSU (or the GCHQ case) has long been regarded as a milestone case regarding judicial control over prerogative powers. In R (Miller) v Prime Minister, (Miller 2) the High Court interpreted CCSU as marking a sea change in how we review prerogative powers. Courts no longer look at the source of a power but its subject matter when determining whether it can be subject to judicial review. Post CCSU it was no longer the case that prerogative powers could not be reviewed because their source was the common law as opposed to legislation. Rather, courts look to see if the subject matter of that prerogative power is justiciable. Is it suited to judicial control by the court?

This blog post will make two arguments. First, it will argue that the High Court’s reading of CCSU in Miller does not provide the full story. As such, it fails to provide an accurate account of when prerogative powers are justiciable. Second, it will argue that, given the current constitutional circumstances, there are strong constitutional reasons for the Supreme Court to build on CCSU and recent case law developments which recognise the principle of legality as a constitutional principle and not just a principle of interpretation. As such, it, or a sister principle, can and should also apply to prerogative powers. The seeds of this form of control were already planted in R (Miller) v Secretary of State for Exiting the European Union (Miller 1), which confirmed that the common law restricts the scope of broad prerogative powers in a similar manner to the principle of legality.

Justiciability

To read CCSU as merely exchanging source for subject matter does not tell the full story. There are many nuances to the judicial approach to controls over prerogative powers. First, it fails to distinguish between controls over whether a purported prerogative power exists, and judicial review over the exercise of a prerogative power. As Miller 1 recognises, controls over whether a prerogative power exists are not confined to an historical analysis. The common law and legislation restrict the scope of prerogative powers. In Miller 1, the Case of Proclamations, combined with the Bill of Rights 1688/9 and the Claim of Rights 1689 in Scotland, provided authority that prerogative powers could not be used to change domestic law. The Supreme Court drew on Laker Airways and Fire Brigades Union to conclude that prerogative powers cannot be used to frustrate the will of Parliament as expressed in legislation, either by frustrating specific statutory provisions or by rendering it devoid of purpose. Whilst these look like cases concerned with the exercise of prerogative powers – because we refer to them as restricting the use of these powers – they are better understood as controls over the existence or scope of prerogative powers. The Supreme Court in Miller 1 did not ask whether the prerogative power of withdrawing from a Treaty was justiciable, despite the clear argument that it was a non-justiciable matter of high policy –  the merits of Treaty withdrawal are a matter of politics, not law. Rather, the Supreme Court considered the matter differently. It limited the scope of the prerogative power of entering into and withdrawing from Treaties so as not to include a specific power to unilaterally withdraw from a Treaty where to do so would modify domestic law or frustrate legislation.

Second, as the High Court recognises in Miller 2, the law has moved on from CCSU. Lord Roskill’s list of non-justiciable prerogative powers has modified over time, with the court recognising that prerogative powers that previously looked to be too political could be subject to legal controls. Lord Roskill’s judgment is not the only judgment in CCSU. The other judgments provide further justifications for the ability of the courts to review prerogative powers. There is a clear role of the court to review those prerogative powers that harm individual rights. We can see this not just as a concern for protecting human rights, but also a broader concern for legitimacy. Moreover, there are suggestions in CCSU and later cases that prerogative powers are justiciable when there are legal standards by which their use can be assessed – as accepted by Lord Drummond Young in Cherry v The Advocate General (at [102]).

This is not, as the High Court in Miller 2 suggested,  to stand justiciability on its head, forgetting that ‘the question of justiciability comes first, both as a matter of logic and of law’. (at [41]). Justiciability can still come first. As Lord Pannick argued, greater caution is exercised over those prerogative powers that are more political. In other words, subject matter can be used as a prima facie indication of justiciability. If a prerogative power is an exercise of high policy, for example, it would suggest either that it can be reviewed on fewer grounds of judicial review, or that the court scrutinises the use of this prerogative in a less stringent manner. Subject matter is still important, even if courts focus on an examination of possible legal grounds of review to determine justiciability. More ‘political’ prerogative powers could, for example, only be unlawful if they breached the rule of law, or failed to follow clear principles of natural justice, rather than being struck down as irrational. Moreover, such ‘political’ prerogative powers might only be unlawful where the use of the prerogative was so absurd that there were no possible rational justification for its exercise.

All of these elements were arguably accepted by the Inner House in Cherry. Lord Carloway concluded that control over the prorogative power of prorogation was justiciable when the prerogative undermines or attempts to undermine a ‘central pillar’ of the constitution – ‘the central pillar of the good governance principle’ (at [50]). Lord Brodie accepted that, whilst it was not for the court to determine the length of prorogation, nevertheless the control of the prerogative was justiciable as the use of the prorogative in this case was ‘so blatantly designed to frustrate the will of Parliament at a critical juncture in the history of the UK’ (at [91]).

Furthermore, as the High Court itself accepts in Miller 2, when it comes to determining justiciability ‘the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action’ (at [47]). This too appears to merge subject matter and the nature of the challenge when determining justiciability.

Principle of legality

I argued above that Miller 1 concerned the scope of prerogative powers. Whilst the Government enjoyed a broad prerogative power to enter into and withdraw from Treaties, this did not include a specific power to withdraw from the EU Treaties because the consequences of doing so would mean that the prerogative would frustrate legislation and modify domestic law, removing individual rights. When expressed in this manner, the reading down of a broad prerogative power is parallel to the way in which courts use the principle of legality to read down broad statutory provisions to protect fundamental rights. In UNISON, for example, the statutory power granted to the Lord Chancellor to set court fees did not extend to include a power to set fees for employment tribunals that undermined access to justice by making it practically impossible for many who used employment tribunals to afford the fees. If, as CCSU suggests, there is a move from source to subject matter, then it is also possible to argue that a principle similar to the principle of legality applies to prerogative powers. Both are executive powers that should be subject to analogous judicial controls, despite having a different source.

The obvious objection to the above argument is that the principle of legality is a principle of statutory interpretation. Yet, when dealing with most prerogative powers – and particularly the prerogative power of prorogation – there are no statutes to interpret. So how can it apply to prerogative powers? There are two main arguments in response to this objection.

First, the principle of legality is not just a principle of statutory interpretation. It is also a constitutional principle establishing the limits of executive power. As Lord Hoffmann recognises in Simms, its application means that the UK courts, whilst accepting parliamentary sovereignty ‘apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document’ (at [131]. See also the argument of Fordham QC, at [31] of Miller 2). Moreover, later case law recognises sister principles to the principle of legality, applied to the interpretation of Henry VIII clauses in Ingenious Media and the interpretation of ouster clauses in Privacy International. In addition, if the principle of legality were just a principle of statutory interpretation, we would expect to see the courts looking for evidence that the legislature was aware of the fundamental principles of common law it was presumed not to legislate against. But this is not the case. Rather, courts determine the content of fundamental principles of the common law. When the intention of Parliament is used by the courts, it is as evidence of an express intention to limit a common law right, or to demonstrate that a fundamental right has been established through legislation and so may not be fully regarded as a fundamental common law right.

The courts adopt a contextual approach to the principle of legality, influenced by the importance of the fundamental common law right or constitutional principle at stake. In particular, the court is more likely to read down provisions of legislation which restrict individual liberty or which undermine a structural aspect of the constitution designed to protect rights, such as access to the courts. Moreover, courts are more likely to read down legislative provisions when determining the scope of powers granted to executive bodies. The principle of legality’s status as a constitutional principle is reinforced by the way in which the courts will allow express words in legislation to empower the executive to restrict fundamental common law rights, but only to the extent that this any restriction on fundamental rights is as narrow as possible, almost akin to an application of the principle of proportionality (see UNISON).

Second, CCSU demonstrates the ability of the courts to draw on fundamental common law principles to control actions of the executive. If judicial review is no longer restricted to the review of powers granted to the executive by legislation, then this means that courts must be able to assert their own controls over executive power, drawing on principles of the common law. This is true regardless of whether we see this as an inherent common law power of the courts, or because we presume the legislature has delegated this function to the courts. Whilst the wording of legislation may place limits on the extent to which the court can use the common law to restrict executive powers, it is no longer the case that only the legislature can place limits on the powers of the executive. As such, a principle akin to the principle of legality could and should apply to prerogative powers. Indeed, this is tacitly recognised by Lord Carloway in Cherry, where he argues that the control of the court over the use of the prerogative power to stymie the will of Parliament ‘follows from the application of the common law, informed by applying “the principles of democracy and the rule of law”’ (at [51]), citing Moohan v Lord Advocate.

In Miller 1 the court drew on earlier case law to explain how the common law restricts the scope of broad prerogative powers. The time is right for the Supreme Court to build on these earlier cases, recognising a further sister principle to the principle of legality, restricting the scope of all prerogative powers so that they do not extend to undermining fundamental constitutional principles – including democracy and the separation of powers. To do so is not to interfere with a political decision as to the timing or length of prorogation. Rather, it is to accept that a broad prerogative power does not extend to include the use of that prerogative to undermine fundamental principles of the constitution. Political choices are bound by legal limits. The courts are both constitutionally and institutionally suited to determine the limits of the law.

I would like to thank Paul Craig and Hayley J. Hooper for their excellent comments on earlier drafts.

Alison L. Young, Sir David Williams Chair of Public Law, University of Cambridge

(Suggested citation: A. Young, ‘Prorogation, Politics and the Principle of Legality’, U.K. Const. L. Blog (13th Sept. 2019) (available at https://ukconstitutionallaw.org/))

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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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Tom Spencer: The Sovereignty of Parliament, the Rule of Law, and the High Court of Parliament

Introduction

The treatment of ouster clauses in R (Privacy International) v Investigatory Powers Tribunal has been said to violate parliamentary sovereignty.  This post disagrees.  That assertion, it argues, misapprehends the rule of law as founded upon the sovereignty of ‘Parliament’ by ‘the High Court of Parlyament’ as recognised in the Crown and Parliament Recognition Act 1689.  The separation of the supreme court from the legislature in O’Connell v R, and the creation of the Supreme Court by the Constitutional Reform Act 2005, undo neither the parliamentary character of the Court nor its participation in the sovereignty of Parliament.  This view supports the dicta of Lord Carnwath in Privacy International, with whom Lady Hale and Lord Kerr agreed, that courts may refuse to recognise or enforce ouster clauses.

A Brief Chronology

In the seventeenth century the supreme court of England and Wales was part of ‘Parliament’.  The lay peers sat both as that court and as the upper house of the legislature.  The ‘supreme court – legislature’ was called ‘the High Court of Parlyament’ in the Crown and Parliament Recognition Act 1689.  Only in the nineteenth century did the supreme court become a specialist body and separate from the legislature, as we shall see.  In the seventeenth century James II attacked the rule of law as founded in the High Court of Parliament, a supreme court and legislature.  He suspended the effect of the Test Acts which discriminated against Catholics, and thereby purported to bear an extra-parliamentary prerogative that was superior to his prerogative inside the parliament forum.  In the bloodless or ‘Glorious’ Revolution of 1688, Parliamentarians reiterated the rule of law, by demonstrating that the executive power acted ultimately inside the High Court of Parliament rather than outside of it.  Following the Revolution the Bill of Rights 1688 specified that the monarch continued to make law, suspend law, and tax for example, ultimately with the consent of ‘Parliament’.  Article 9 reinforced the requirement that the executive power act ultimately inside the parliamentary forum, by protecting the freedom of speech inside Parliament from any Court of Place out of Parliament.  The monarch constituted the executive power until the nineteenth century, when the Representation of the People Act 1832 abolished the ‘rotten’ and ‘pocket’ boroughs controlled by the monarchy and aristocracy.  Parliamentarians themselves now appoint and comprise the executive power; the ‘parliamentary executive’.  However, since 1844 that membership is drawn from the legislature alone.  In O’Connell the lay peers finally conceded that the professional judges who ‘assisted’ them were in fact the real judges of the supreme court of the UK.  This recognition of the specialisation of the supreme court separated it from the legislature.  The separation was formalised by the Constitutional Reform Act 2005 which established a separate UK Supreme Court in 2009.  This post argues below that the separation did not terminate the parliamentary character of the Supreme Court.

The Sovereignty of Parliament

The Revolution established the sovereignty of Parliament as a form of judicial review of executive power, it is submitted.  The High Court of Parliament, a supreme court and legislature, validated and authorised executive power, by demonstrating that executive power acts ultimately inside that independent forum rather than outside of it.  The Bill of Rights required William III to act ultimately through the High Court of Parliament, when he made law, suspended law or taxed for example.  Parliamentarians did not presume to bear a political supremacy over the executive power which remained monarchical until 1832.  Instead the Revolutionary sovereignty of Parliament involved the supreme court and legislature authorising the monarch to act as the Sovereign, in Parliament.  Three objections to this view are possible.

First Objection

First, responsible government in the nineteenth century may be said to have fundamentally changed the sovereignty of Parliament.  It may be supposed that responsible government instituted the rule of law as founded by the sovereignty of Parliament as ‘parliamentary supremacy’ or ‘legislative supremacy’ to use AV Dicey’s phrase.  In this view the legislature does not purport to independently validate and authorise executive power, as did the High Court of Parliament at the Revolution.  Instead the legislature is ‘legally the sovereign legislative power in the state’.  Dicey pointed to the Septennial Act 1715 as ‘the result and the standing proof of such Parliamentary sovereignty’, because Parliament prolonged its own legal existence by the Act.  This view is unconcerned with the parliamentary character of the supreme court either before or after its separation from the legislature in O’Connell.  It is submitted that the participation of the supreme court in the High Court of Parliament precluded independent judicial review, in the modern sense, of legislation such as the Septennial Act.  A judicial appeal could ultimately have gone to the judicial House of Lords; the same body that passed the Act as the legislative House of Lords.  Instead judicial review occurred through the High Court of Parliament requiring the executive power to purport to act ultimately through that forum, to validate its ‘Acts’.

Dicey said of statutes that, ‘being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament’.  But otherwise he neglected the curiality of the High Court of Parliament.  This view fails to accommodate the sovereignty of Parliament in 1688.  It also fails to accommodate an element of that sovereignty, the need for judicial independence from the executive power, upon legislators instituting themselves as the parliamentary executive through responsible government in 1832.  Whereas the rule of law as established by the Revolutionary sovereignty of Parliament asserted judicial independence from the executive power, that is no longer the case under legislative supremacy as articulated by Dicey.  His reduction of the sovereignty of the High Court of Parliament, to legislative supremacy, is inferior to the model proposed in this post, because his model did not ‘get in’ judicial independence.  We shall see that his legislative supremacy also fails to accommodate Jackson.

Second Objection

The second possible objection to the view proposed in this post also relates to the O’Connell separation of the supreme court from the legislature.  It is arguable that it undid the parliamentary character of the supreme court, and hence the Revolutionary curiality of Parliament to independently validate and authorise executive power.  However, s.4 of the Appellate Jurisdiction Act 1876 referred to the judicial House of Lords as ‘Her Majesty in Her Court of Parliament’, a term Lord Bingham used as late as 2002.  This indicates that the parliamentary character of the supreme court endured, at least until its repeal by the Constitutional Reform Act 2005, discussed shortly.  But if it endured there have been few occasions since O’Connell when the supreme court could have acted separately from the political branches, to demonstrate that Revolutionary capacity to validate and authorise the executive power, independently of legislators who now generate the executive power themselves as the parliamentary executive.  Arguably, review of legislation under the European Communities Act 1972 gave the supreme court such a chance, but in such cases it could be said that the court was merely acting under the authority of the legislature.

For this reason Jackson is Revolutionary.  The reader will recall that the Blair Government sought to restrict hunting, and used the Parliament Act 1911 to by-pass the legislative House of Lords when enacting the Hunting Act 2004.  Doubts as to validity continued to attend the new Act, despite it gaining Her Majesty’s assent.  Unlike the judgments on European legislation, the need for an independent stamp of authority on the 2004 enactment precluded the supreme court from purporting to act on behalf of the legislature.  Lord Bingham identified ‘Parliament’ with the legislature alone, and observed:

The appellants have raised a question of law which cannot, as such, be resolved by Parliament. But it would not be satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety [27].

The Attorney General’s acquiescence in the appeal [27] to the judicial House of Lords, and the judgment itself, revealed that as in 1688 the executive power today is not ultimately validated by its own assertions of its authority; whether the parliamentary executive in the legislature enacting legislation proposed by the same executive power, or the royal assent of the monarchical executive.  Instead executive power is lawfully validated and authorised when it is required to act through an autonomous forum, the High Court of Parliament, a supreme court and legislature.  When the UK supreme court reviewed and authorised the Hunting Act 2004 in Jackson, judicial review was differentiated from political forms of review of executive power, and the former was shown to be more independent, and therefore more authoritative.  In Jackson, as at the Glorious Revolution, the High Court of Parliament exercised the sovereignty of Parliament to independently validate and authorise executive power.  The O’Connell separation of the supreme court from the legislature furthered the judicial independence founding that sovereignty, rather than impeding or even undoing it.

Third Objection

It is convenient to consider the third possible objection to the view proposed in this post, in terms of recent commentary on Privacy InternationalSection 1 of the Constitutional Reform Act 2005 perpetuated the rule of law as it existed on 24 March 2005, just before Jackson was handed down on 13 October 2005.  Mike Gordon describes Lord Steyn, Lord Hope and Baroness Hale as overtly speculating in Jackson about ‘the possible existence of common law limits on parliamentary sovereignty’.  Professor Gordon proceeds to use that speculation as a vantage point for viewing the Supreme Court’s recent treatment of ouster clauses in Privacy International.  The Court addressed a question about s.68(7) of the Regulation of Investigatory Powers Act 2000, partly in terms of whether Parliament can legally oust review of decisions by a body such as the Investigatory Powers Tribunal.  A 4-3 majority of the Supreme Court rejected a statutory provision that ramped up the language of another ouster clause, rejected in Anisminic v Foreign Compensation Commission by the UK supreme court half a century earlier.  Gordon says that ‘(t)o 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’.

Conclusion

In 1688 the executive power personally wielded an ‘ouster clause’.  James II claimed that his extra-parliamentary prerogative was superior to his prerogative inside the High Court of Parliament, a supreme court and legislature, such that he could suspend the effect of legislation against Catholics.  Parliamentarians defeated that claim by subjecting executive power to the sovereignty of Parliament, through the Glorious Revolution and subsequent legislation such as the Bill of Rights.  The claim of the parliamentary executive to wield ouster clauses today similarly seeks to oust the jurisdiction of independent courts, despite Jackson confirming the capacity of the supreme court to independently validate and authorise executive power.  The supreme court’s validation and authorisation of the Hunting Act 2004, after the Constitutional Reform Act 2005 gained assent, demonstrates its enduring membership of the High Court of Parliament, its continuing participation in the sovereignty of Parliament, and judicial independence from executive power.  The institution of legislative supremacy by responsible government, the O’Connell separation of the supreme court, and the perpetuation of the rule of law by the Constitutional Reform Act articulate the need for judicial independence from executive power, as a feature of the sovereignty of the High Court of Parliament.  The Supreme Court must continue to participate in the sovereignty of Parliament, by independently reviewing ouster clauses as in Privacy International.

I am grateful to Alison Young and Melissa Naylor for their very helpful comments on this post.

Tom Spencer, Sessional Academic, University of Queensland

(Suggested citation: T. Spencer, The Sovereignty of Parliament, the High Court of Parliament, and Privacy International’, U.K. Const. L. Blog (18th Jul. 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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