Philip Allott: On the Merits of Constitutional Struggle

The current dramatic interaction between the Government, Parliament and the courts means that we are witnessing one of those formative moments in the evolution of our constitution of which there have been many over the course of centuries. The attention that is paid to the checks and balances of the US written constitution has tended to overshadow the fact that a much more interesting confusion and separation of powers has been at the heart of the dynamic development of our unwritten constitution.

In the present struggle, the sovereignty of Parliament has been invoked.  Monarchical ambitions have been detected in the executive. The spectre of the politicising of the courts has been raised.  It may be helpful to re-state as calmly as possible the underlying and enduring structure.  You do not have to be Edmund Burke to believe that it is a remarkable achievement of subliminal collective intelligence over the course of fifteen centuries.

The sovereignty of Parliament merely expresses the legal fact that Acts of Parliament override the common-law, and hence are in that sense supreme, subject now to the effect of EU law within UK law. The powers of Parliament are themselves legal powers which the courts respect and assert and protect.  The Bill of Rights of 1689 says that ‘the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place outside of parliament’.

There is no particular magic in the term ‘prerogative power’. The few remaining prerogative powers are common-law powers in the sense that they are not conferred by statute, and in the sense that they are powers whose existence and conditions of application are matters to be determined by the courts. They are also common-law powers in the sense that they may be abolished, abridged, supplemented or temporarily superseded by statute.

The whole of our sophisticated system of public law consists in the review by the courts of decisions made by all levels of the executive branch of government in the exercise of legal powers. Of course, the decisions will often have been made on political grounds, but it is the job of the courts to determine the limits of the powers, given that their exercise abridges the legal rights and freedoms of particular citizens, and in some cases the legal rights and freedoms of all citizens.

All of these things are simply manifestations of the principle of the Rule of Law.  It took centuries of struggle to establish the Rule of Law as the ultimate principle of our constitution, so that it could become an ultimate principle of liberal democracies across the world.

Philip Allott is Professor Emeritus of International Public Law at Cambridge University.

(Suggested citation: P. Allott, ‘On the Merits of Constitutional Struggle’, U.K. Const. L. Blog (14th 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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Von der Leyen sets priorities with new Commission lineup

Ursula von der Leyen, the first woman ever selected to lead the European Commission, put forward her slate of nominees Tuesday with historic, near-perfect gender balance, and portfolio assignments designed to tackle urgent policy challenges.

The posts include an executive vice president focused on climate change; a commissioner tasked with overseeing a new department for defense industry and space; and vice presidents focused on values, democracy, and the “European Way of Life.”

Von der Leyen’s nominees, who need confirmation by the European Parliament in coming weeks to take office, include 12 women and 14 men — a leap forward from the current Commission, which has eight women, and a seismic shift for the EU’s executive body, which from 1985 to 1988 had no women at all.

In addition to von der Leyen, a former German defense minister, in the top job, women in the next Commission will hold many of the most powerful posts and prominent portfolios, including Margrethe Vestager of Denmark as executive vice president charged with making “Europe fit for the digital age.”

Vestager will also retain her current position as competition commissioner, continuing a role overseeing the EU’s anti-trust regulations that brought her to global prominence and even drew criticism from U.S. President Donald Trump, who derisively referred to her as the “tax lady.”

Other prominent women include Věra Jourová, of the Czech Republic, who will be vice president for values and transparency; Sylvie Goulard a former French defense minister, as commissioner for the internal market and also overseeing a new directorate-general for defense industry and space; Dubravka Šuica, a former mayor of Dobrovnik in Croatia, as vice president for democracy and demography; and Kadri Simson, of Estonia, as energy commissioner.

The selection of Jourová, representing one of the Visegrad Four nations of Central and Eastern Europe, carries special significance given still-simmering tensions between Brussels and two of the V4, Poland and Hungary, which have been accused of undermining core EU principles on rule of law and democracy.

Among the men, Frans Timmermans of the Netherlands, who was the center-left candidate for Commission president, will be executive vice president for the “European Green Deal,” essentially retaining the senior executive position he currently holds in Jean-Claude Juncker’s Commission.

And Valdis Dombrovskis, a former prime minister of Latvia and current Commission vice president, will be executive vice president for economic and financial affairs. Former Italian Prime Minister Paolo Gentiloni will be commissioner for economy.

Josep Borrell, currently the Spanish foreign minister, will be high representative for foreign affairs — a decision that was made by the heads of state and government on the European Council at the same time they chose von der Leyen for the presidency.

Von der Leyen’s proposed College of Commissioners effectively scrambles positions and portfolios to focus far more on policy themes than on mirroring the Commission’s departments (known as directorate-generals).

“We have a structure that focuses on tasks, not hierarchies,” von der Leyen said at a news conference at the Commission headquarters. “We need to be able to deliver on the issues that matter the most, rapidly and with determination.”

“I want this European Commission to be a flexible, modern, agile Commission,” she said, at another point calling it a “geopolitical Commission” and a “guardian of multilateralism.”

But by proposing eight vice presidents, including three executive vice presidents, von der Leyen will undoubtedly face questions about whether she has created a College with too many bosses.

Of all the creative and unusual titles that von der Leyen proposed, perhaps the most intriguing was that of  vice president for “protecting our European way of life” assigned to Margaritis Schinas, the Greek nominee and former chief spokesman for the Juncker Commission.

Von der Leyen explained that Schinas would be in charge of migration — which includes one of the EU’s most intractable policy disputes, over how to revise the bloc’s asylum rules.

Follow POLITICO’s live blog for the latest on the unveiling of the new Commission.

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