November 23

Robert Craig: Privacy International Symposium – Privacy International and the Separation of Powers

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 ([2017] EWHC 114 (Admin)) and on appeal ([2017] 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.

The separation of powers is the Cinderella of constitutional discourse. My theme in this blog is that the court’s treatment of an attempt by parliament to oust the supervisory jurisdiction of the High Court needs to draw a clear distinction where the relevant body is in fact acting in a judicial rather than executive capacity. This blog is a condensed version of an article in the October 2018 edition of Public Law.

Ouster clauses appear to place into tension two core ideas which are that the will of parliament must be obeyed and that ordinary citizens should be able to challenge public bodies in court: parliamentary sovereignty versus the rule of law.

Anisminic is now generally seen as the classic example of the treatment of ouster clauses by the courts. The courts held they are to be treated as ineffective without crystal clear words. The decision in Anisminic was eventually considered to have swept away the jurisdictional distinction such that when a public body makes a mistake of law, it always acts outside its jurisdiction.

Ouster clauses applied to judicial bodies

In my submission, the effect of ouster clauses on judicial review of judicial bodies should be clearly distinguished from the Anisminic situation. My claim is that in Privacy, the relevant body, the IPT, exercises a judicial function. The appropriate analysis of ouster clauses concerning bodies exercising a judicial function is conceptually distinct from the application of such clauses to bodies exercising an executive function.

In a series of cases, including Racal and Page, the supervisory role of the courts over bodies exercising a judicial function has been brought close to, but not entirely in line with the treatment of administrative bodies after Anisminic. There remains, however, a clear set of circumstances where the writ of the High Court does not run.

Lord Diplock in Racal stated that where parliament intended to oust the jurisdiction of the High Court over inferior courts, such clauses should be generously construed. In Page Lord Browne-Wilkinson held that, in general, inferior courts will not be able to diverge from the general law.

It might be thought that all areas of law should be compliant with the ‘general law’. This is clearly disproved by Page. The court said that the visitor ‘is applying not the general law of the land but a peculiar, domestic law of which he is the sole arbiter and of which the courts have no cognisance’. Thus there are two sub-categories of ouster clauses concerning judicial bodies.

The case of Woolas is a good example of where a court was never supposed to diverge from the general law which forms one sub-category.

The second sub-category – where the writ of the High Court does not run

Cart concerns the jurisdiction of the Upper Tribunal. Lord Justice Sedley in the Court of Appeal in Cart drew a precise distinction between ‘outright excess of jurisdiction’ and a ‘mere error of law made in the course of an adjudication’, describing the distinction as being a ‘true jurisprudential difference’. This specifically recognises that the Upper Tribunal has the mandate from parliament to diverge from the general law by making errors of law within its jurisdiction.

Most unfortunately, the Supreme Court significantly muddies the clear waters mapped out by LJ Sedley. It held that the criteria for judicial review should be the ‘second appeal’ criteria which mean that if a point of general public importance is raised, then the claim could be brought. This was said to be a pragmatic compromise.

Unfortunately, as with many compromises that fudge hard choices, this judgment neatly captures the worst of both worlds because it allows the Upper Tribunal to diverge from the general law in apparent breach of the rule of law but at the same time it undermines parliamentary sovereignty by permitting judicial review in some circumstances but contrary to the intention of parliament.

Privacy International

The Investigatory Powers Tribunal (‘IPT’) was set up by statute to permit the legality of actions taken by the security services to be tested independently, in court. The IPT is a judicial body because it deals only with questions of law not the merits of substantive decisions by the security services.

Importantly, the IPT is the only available forum for actions against the intelligence services under s 7 of the Human Rights Act 1998 – actions under s 7 must be considered by a judicial body. The IPT may be labelled a “tribunal” but it exercises a judicial function. What matters in these situations is that the function of the relevant body in the particular case is carefully assessed and classified. 

Parliamentary sovereignty or the rule of law

The linguistic distinction between the clauses in Anisminic and Privacy was not one that persuaded Leggatt J in the Divisional Court: “(including decisions as to whether they have jurisdiction)”. Leggatt attacked the possibility of there being any ‘legal islands’ specifically on rule of law grounds.

The rule of law does not require hegemony. The IPT is an independent judicial body with prospective, clear, open, stable and general rules that have been set out in advance with hearings that are subject to the rules of natural justice. This tends to undermine any claims that the absence of an appeal procedure from the IPT necessarily breaches basic rule of law principles. To the extent the application to the Supreme Court relies on a generic appeal to the “rule of law” as its core thesis, the argument is weak.

Furthermore, it is important to consider the damage to the clarity and certainty the rule of law is meant to promote if the courts were to disregard the wording of s 67(8) RIPA and the clear intention of parliament. Demanding crystal clear words where otherwise the executive could operate outside the law is one thing. Insisting that parliament cannot prevent the senior courts imposing their interpretation of RIPA on the IPT in the teeth of parliamentary intention to the contrary is quite another.

LJ Leveson in the Divisional Court and LJ Sales in the Court of Appeal both take a radically different view to Leggatt J. Their approach is consistent with the test in Page and the views of LJ Sedley in Cart. Crucially, RIPA imposed ‘second tier’ appeal requirements on This means that it would arguably be inappropriate for the court to impose the same test in Privacy as was applied by the Supreme Court in Cart. This is because if parliament had intended to introduce the second-tier appeal mechanism that it in fact introduced later then it would have done so beforehand.

It is reasonably clear that the intention of parliament when it created a judicial framework to consider the legality of activities of the security services was to create a regime that was separate and potentially divergent from the general law. The IPT has its own jurisdiction which should be respected.

The wording of the ouster clause appears to confer on the IPT the right to determine the limits of its own jurisdiction and the intention of parliament appears to be clear. The IPT ouster clause should be effective notwithstanding the Anisminic doctrine. This is primarily because it was a judicial body and in particular a judicial body that parliament intended to be able to deviate from the general law. It has its own jurisdiction.

Conclusion

I have attempted to clarify the courts approach to ousting the jurisdiction of the High Court since Anisminic. I have suggested that applying the separation of powers to the analysis forces a distinction to be drawn between ouster clauses in different situations. It is clear that ousting the jurisdiction of the High Court to supervise executive bodies requires exceptionally clear words as Anisminic shows.

Separately, the courts have interpreted ouster clauses for judicial bodies narrowly where parliament has shown no intention of conferring the power to diverge from the general law on a particular judicial body. A proper approach to the separation of powers is central to this analysis.

By contrast, where parliament has indicated that it intends that a particular judicial body should be able to deviate from the general law, then such bodies can do so by making errors of law. They have their own jurisdiction. It is rare for parliament to indicate that this is its intention. Arguably, Cart was one such example and LJ Sedley’s judgment is to be preferred to the Supreme Court because it recognises that parliament did in this case intend that the tribunal system would be, basically, autonomous. Privacy provides us with another example. Page was the first example.

In Privacy, and arguably Cart, parliament intended to reallocate judicial supervision usually undertaken by the High Court to a new statutory judicial body that cannot itself be judicially reviewed by the High Court for error of law. This clear parliamentary intention should be respected and in my submission the possibility of effective ouster clauses covering some specific judicial bodies should be recognised by the Supreme Court.


Robert Craig is a PhD Candidate at Durham University