Now, Alice through the Looking Glass

22 May 2019 by

Biologists are fond of using the analogy of Alice and the Red Queen to explain why, in the real world of parasites and defence immune systems, you have to run to keep still. In this post I will be looking at a similar problem in the legal world, where the rule of law paradigm is subject to competition between parliament and the judiciary. You have to keep running to keep abreast of whichever one has the flame. Who will prevail as anointed guardian of the rule of law? Does it matter, and is the race even real?

R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents) [2019] UKSC 22.

In his analysis of the half century of argumentation on this point, Jonathan Metzer suggests that the question of who is actually in charge may be redolent of Alice in Wonderland. Anisminic replaced one confusion with another by merging errors of law and errors of jurisdiction. The effect of this ruling was, in Lord Sumption’s words,

to create what is nominally a power of review, but is in substance a right of appeal on points of law going to the merits.

For the facts and issues in this appeal, see Jonathan’s post Anisminic 2.0. David Hart QC’s post considers the Appeal Court ruling (which went the other way) here. In the paragraphs to follow I explore the dissent.

The appeal it will be remembered turned on whether parliament was free to entrust a judicial body such as the Investigatory Powers Tribunal to interpret the law free from any possibility of review by the ordinary courts.

The difference between “courts” and “tribunals” of course is largely one of nomenclature and the notion that the latter are inherently inferior to the former has largely fallen away. But specialist tribunals should not be free to develop the law in isolation. Is this threat of “local law”, spiralling off from the general “law of the land”, perceived or real?

Of course judicial review should sustain Parliamentary sovereignty. But, as Lord Sumption suggests, this is statement of aspiration rather than fact, and depends on the view that Parliament’s will, as expressed in written texts, can only be given effect if there is a “supreme interpretative and enforcing authority”, and that authority, “by its nature”, resides in courts of law. It is important to remember that

The rule of law applies as much to the courts as it does to anyone else, and under our constitution, that requires that effect must be given to Parliamentary legislation.

We can all agree that the purpose of judicial review is to maintain the rule of law. But if the rule of law is sufficiently vindicated by the judicial character of a tribunal such as the IPT, why does it require a right of appeal from the IPT to other judicial institutions, presided by the very High Court judges who make decisions in the IPT? Where precisely, asks Lord Sumption, is that constitutional principle to be found? Of course it would be “absurd” to pretend that there is no difference between a statute that provides for the finality of an administrative authority’s decision, as opposed to one that does the same for judicial rulings. But the decision making body in this case is indistinguishable from a court in every relevant sense.

As Lord Wilson points out, every legal system has to identify some end-point beyond which there can be no challenge or further challenge to a judicial decision. The IPT is such an end-point. The exclusion of the High Court’s review jurisdiction is not an attempt by the Crown in parliament to oust the scrutiny; it is simply an allocation of that scrutiny to a body of equal independence independence and authority [para 252].

It is tempting to be carried away on a wave of learned enthusiasm about the rule of law, and readers wary of their time and attention do well to avoid this rabbit hole. But as Lord Sumption reminds us, the presumption against ouster clauses is concerned with the protection of the rule of law principle, and that in turn depends on the availability of judicial review.

It is not concerned to protect the jurisdiction of the High Court in some putative turf war with other judicial bodies on whom Parliament has conferred an equivalent review jurisdiction.

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