Christopher Forsyth: Privacy International Symposium – Ouster Clauses and Sovereignty
Privacy International has brought judicial review proceedings against the Investigatory Powers Tribunal, in respect of the Tribunal’s treatment of a complaint about computer hacking by GCHQ. At first instance ( EWHC 114 (Admin)) and on appeal ( EWCA Civ 1868), it has been held that judicial review of the Tribunal is precluded by the ouster clause contained in s. 67(8) of the Regulation of Investigatory Powers Act 2000. A seven-judge bench of the Supreme Court (Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Sumption, Lord Carnwath and Lord Lloyd-Jones) will hear Privacy International’s appeal in December.
This online collection grows out of a symposium held by the Centre for Public Law at the University of Cambridge on October 20, 2018, organised by Dr Paul Daly (University of Cambridge). Symposium participants have agreed to post short contributions on this important litigation.
Like much else about the UK’s constitution it all depends on the view one takes of the sovereignty of Parliament. If Parliament is sovereign then it may do or undo anything at all. It follows that then it may enact an ouster clause that effectively excludes judicial review of the body in question. The only issue that remains is whether on a true construction of the clause in question the intent of Parliament was that judicial review should be excluded. If only it were so simple.
But if Parliament is not sovereign then is may be that clear statutory words ousting judicial review may be disregarded or disapplied in order to protect the constitutional right of access to the courts or preserve and protect constitutional principle (as Sir John Laws amongst others argue).
But my working hypothesis is that Parliament is sovereign. This does not flow from an attachment to the doctrine of sovereignty on my part. I cut my legal teeth in a jurisdiction (South Africa) where Parliament was sovereign and also deeply undemocratic. It might well be a good thing if Parliament were not sovereign but wishing does not make it so.
So my working assumption does not rest on any particular fondness for the doctrine; it flows, in the first place, from the pronouncements of the courts. The supremacy of Parliament is one of the most firmly established of all constitutional principles as many cases attest. Most recently, all the judges who heard the Miller case (the Brexit judicial review) were emphatically orthodox. At first instance, the principle of parliamentary supremacy is unequivocally and unconditionally affirmed by the Lord Chief Justice, the Master of the Rolls and Sales LJ. Dicey’s famous dictum that Parliamentary sovereignty means that Parliament has “the right to make or unmake any law whatever; and, further that no body or person is recognised by the law …as having a right to override or set aside legislation of Parliament” is cited with approval as is Lord Bingham’s remark in Jackson that “the bedrock of the British constitution is..the supremacy of the Crown in Parliament.” In the Supreme Court, their Lordships were equally forthright: “Parliamentary sovereignty is a fundamental principle of the UK constitution… It was famously summarised by Professor Dicey as meaning that Parliament has “the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament”(per Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, and Lord Hodge). While judges may always change their mind and while one should never underestimate academics’ ability to argue that judges in fact mean the precise opposite of what they said, these recent, unequivocal and authoritative judicial dicta surely mean that a frontal attack on the supremacy of Parliament is unlikely when the Supreme Court hears Privacy International.
But it should also not be forgotten that our Parliament – notwithstanding its manifold deficiencies – speaks with the special legitimacy of a representative legislature; curbing Parliament’s powers thus implies a shift of power from elected hands to the hands of the unelected judges. That shift of power is not something to be undertaken by judges or scholars without the imprimatur of the demos.
But none of this commits the courts to purblind literalism in interpreting legislation that, say, purports to oust the jurisdiction of the judicial review court. As Lord Steyn said in well known words in R v Home Secretary, ex parte Pierson: “Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption only has prima facie force. It can be displaced by a clear and specific provision to the contrary.” Since in most cases legislation will be an expression of those European liberal values this will reconcile those “principles and traditions of the common law” with the intent of Parliament. But where such reconciliation is not possible, the dictum from Pierson makes plain that Parliament has the final word.
This is the vital issue. In Professor Jeffrey Goldsworthy’s words: “What is at stake [here in debates over sovereignty] is the location of the ultimate decision-making authority- the right to the ‘final word’ in a legal system.” But if Parliament is supreme and is to have the final word – whatever the issue – the courts cannot have that “final word”. Parliament must in the final analysis be the ultimate guardian – above all others – of constitutional principle.
Thus the ultimate guardians of constitutional principle are the elected representatives of the people. Thus the words of a statute are not an empty vessel into which the courts, in a process of “constitutional interpretation”, pour a meaning they consider consistent with “constitutional principle” or “the rule of law” or the “principal of legality” or whatever. Those constitutional principles howsoever they might be articulated must – in our constitutional order – contain within them as the “head and the hoof” the principle of obedience to parliamentary supremacy. However wise and wonderful might be the meaning accorded to the statute by the judges in pursuit of the “constitutional principle” what matters is the meaning that Parliament chose or may reasonably be taken to have chosen. Within this context there is much scope for judicial wisdom and creativity; outside this context the judges threaten the constitutional order.
Of course it is not to be supposed that the judges would openly challenge the supremacy of Parliament in a judicial decision. The real danger is that the judges will pay lip service to supremacy but in fact not heed the clear purpose of the legislature. The majority judges in Evans v Attorney-General, for instance, did not heed the clear intent of the legislature and severe criticism is due to them for that reason. Here one sees imaginative and sophisticated approaches to interpretation being deployed to deny Parliament’s will.
There is nothing untoward with the principle that judges will give a restrictive meaning to an ouster clause that would otherwise place a decision-maker above the law. If Parliament wishes to oust the jurisdiction it must do so with the clarity. This is well established and ancient – much older than Anisminic. This principle is so well established and so ancient that the restrictive interpretation of the ouster clause – in say Anisminic – may reasonably be taken to be what Parliament intended.
But what did Parliament intend in the enactment of section 67(8) of the Regulation of Investigatory Powers Act 2000? Section 67(8) reads:
“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the [Investigatory Powers] Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.” (emphasis added)
Approaching this text in good faith it seems to me that the italicised words must be intended to disable the reasoning in Anisminic, (viz that the ouster clause was not intended to cover determinations of the FCC that took the FCC beyond its jurisdiction). When the words used are assessed in the particular context (in which the IPT is staffed by senior judges dealing with evidence properly kept secret for reasons of national security), a strong case can be made that Parliament intended that decisions of the IPT should be beyond challenge unless the SoS otherwise provided.
I am not so bold as to venture a prediction how the Supreme Court will decide Privacy International but it seems to me that there are four possible outcomes.
First, the SC may openly challenge the supremacy of Parliament by asserting the power to ensure that the rule of law trumps Parliament’s will. By judicial fiat the ouster would be disabled. If the SC did this it would be stepping from law into politics and the outcome of its efforts impossible to predict. An unedifying trial of strength between Parliament and courts may follow. But at least the SC would be being frank and open about what it was doing.
Secondly, the SC may find a meaning to be given to section 67(8) that disables the ouster but may none the less be plausibly considered to be what Parliament intended. This may be considered the best outcome – although it presumably accords little weight to the national security considerations that underlie the enactment of section 67(8). The rule of law and the supremacy of Parliament will have been reconciled. But such a meaning is not at all obvious from the words used. Absent Anisminic reasoning (which section 67(8) precludes) it seems clear that the Parliament intended that the IPT should “not be subject to appeal or be liable to be questioned in any court.”
Thirdly, the SC may, without openly challenging Parliament’s supremacy, impose a meaning on section 67(8) that disables the ouster but which is a meaning that the words used “cannot bear”. Lip service may be paid to supremacy but the reality is denied. This may be considered the worst outcome because the judges are not being open and frank about what they are doing. They would pretend to constitutional orthodoxy but in reality they would be in rebellion against it.
Fourthly, the SC may accept that section 67(8) means what it says; and that the IPT is not subject to appeal or liable to be questioned in any court. Those subject to the jurisdiction of the IPT have no guarantor of justice other than that offered by the panel of high court judges deciding the case. But that is no small thing. To be sure in an ideal world the IPT would be subject to judicial review. But the interface between the protection of individual rights with the claims of national security is not an ideal world. Compromises have to be made; and Parliament has judged that in the IPT’s case judicial review should not be available. Surely that is a legitimate judgment for the sovereign Parliament to make?
Professor Christopher Forsyth is Emeritus Sir David Williams Professor of Public Law at the University of Cambridge.