ALBA Conference 2019: A Review (Part 3)

24 October 2019 by

This post, and those that follow it, summarises some of the main points of interest arising from the ALBA Conference 2019.

‘The Constitutionality of Ouster Clauses’ – Chair: Lord Justice Leggatt; Speakers: Professor Alison Young, Professor David Feldman, Professor Stephen Bailey

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Earlier this year, the Supreme Court gave its judgement in R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents). The case concerned the Investigatory Powers Tribunal (‘IPT’), a specialist tribunal which was established by the Regulation of Investigatory Powers Act 2000 (‘RIPA’). The IPT hears complaints about certain public bodies, particularly concerning the Security Services.

s.67(8) of RIPA contains a so-called ‘ouster clause’, which held that “determinations, awards 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”.

The issue in Privacy International was whether decisions made by the IPT were judicially reviewable. A majority of the Supreme Court held that s.67(8) did not, in fact, oust the jurisdiction of the court. The panel analysed this crucial case in more detail.

Professor Alison Young: Privacy International

Anisminic

Professor Young began with the case of Anisminic. Section 4 of the Foreign Compensation Act 1950 stated that ‘the determination by the Commission of any application made to them under this Act shall not be called into question in any court of law’. The court held that if an error of law is made by the decision-maker, it would come to a decision outside its jurisdiction. This makes any such ruling a ‘purported determination’ and a nullity, allowing a judicial review. All legal errors are jurisdictional errors, therefore, because any outcome which is tainted by them will be beyond the power of the Commission.

Privacy International

She then turned to s.67(8) RIPA. As we have seen, this section contains an ouster clause specifically excluding jurisdictional errors. Applying the logic of Anisminic, one might think this would create an effective ouster clause.

Three members of the Supreme Court agreed. Lord Wilson considered that the ouster clause was effective, because it specifically ousted judicial review over jurisdictional errors. Lord Sumption and Lord Reed reached the same conclusion by looking at the statutory provision ‘in the round’.

However, the lead judgment given by Lord Carnwath took a different approach. His Lordship essentially adapted the approach in Anisminic. He held that there is generally a statutory presumption against ousting the jurisdiction of the High Court. This means the exclusion in s.67(8) only applies to determinations that are valid in law, including ones relating to jurisdiction. Lord Lloyd-Jones wrote a concurring judgment. He noted that s.67(8) did not oust ‘legal errors’, but merely issues of jurisdiction. For those reasons, the purported ‘ouster-clause’ failed.

The second, more controversial, question for the Supreme Court was whether Parliament can ever oust judicial review. Lord Wilson held that it could, basing his reasoning on an argument about the sovereignty of Parliament. Lord Sumption took a more cautious approach, saying that clear words were needed to show that Parliament wished the inferior court/ tribunal to determine its own jurisdiction. Lord Carnwath, by contrast, suggested that the rule of law means it is always for courts to decide whether an ouster clause should be upheld. This implies that there is a limit on Parliamentary sovereignty.

Professor David Feldman: Statutory Interpretation

Professor Feldman noted that the differing opinions in Privacy International makes it extremely difficult to extract any clear rule about how ouster clauses should be construed. However, he identified a number of principles:

  1. It is constitutionally objectionable to seek to prevent courts/ tribunals from adjudicating on the lawfulness of official acts.
  2. Parliament can oust the court’s jurisdiction, but very clear words indeed are needed.
  3. It is not necessarily constitutionally objectionable to assign the adjudicative role to a court other than the High Court. However, it is desirable that the High Court is the tribunal of last resort (subject to any appeal).
  4. The interest in maintaining independent oversight is especially strong where the applicant alleges that the decision-maker lacks the power they purportedly exercised.

Plain meaning of the statute

When interpreting statute, the courts normally examine the plain meaning of the words used, read in the context of the statute as a whole. However, Professor Feldman noted that, in Privacy International, Lord Wilson was the only justice to adopt this approach (at [229]). His Lordship held that whilst there was an initial presumption that Parliament does not wish to exclude judicial review, if necessary this must yield to the plain meaning of the words (at [224]).

Lord Carnwath took a different approach, following R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28. His Lordship held Cart reaffirmed ‘the continuing strength of the fundamental presumption against ousting the supervisory role of the High Court over other adjudicative bodies, even those established by Parliament with apparently equivalent status and powers to those of the High Court’ [99]. In effect, this presumption means a statute should not be interpreted as ousting the High Court’s supervisory jurisdiction over inferior courts and tribunals if another tenable interpretation can be found.

Lord Lloyd-Jones expressed a similar view to Lord Carnwath. He suggested that it is ‘a necessary corollary of the sovereignty of Parliament that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament’ (at [160]). As Laws LJ stated in Cart “only a court can fulfil the role” (at [37]).

Professor Feldman finished by noting that Privacy International contained a number of different principles, which attracted varying degrees of support. What is clear, however, is that they are all concerned with the related issues of parliamentary sovereignty and the rule of law. Perhaps, then, the uncertainty surrounding the correct method of statutory interpretation is unsurprising. As Professor Joseph Raz has noted, “The rule of law, as I will understand it, is a specific virtue or ideal that the law should conform to. There is no agreement about what it is … The lack of agreement is often a source of strength – people unite in supporting such institutions and principles in spite of diverse views about their nature”.

Professor Stephen Bailey: ‘Constitutional’ Statutory Interpretation and Judicial Sovereignty

Professor Bailey began by focusing on Lord Carnwarth’s conclusions on the first issue in Privacy International: namely whether s.67(8) RIPA successfully ousted the High Court’s jurisdiction. As Professor Feldman noted, Lord Carnwarth rejected the argument that the interpretation was to be approached by scrutinising the plain meaning of the statute, having regard to the statute as a whole, in order to discover Parliament’s intention (at [106]). Lord Carnwath concluded a different approach was required due to the “critical importance” of the common law presumption against ouster.

Professor Bailey argued that Lord Carnwath’s approach, which consists of starting with the common law presumption and then moving to the statute itself, cannot reflect the intention of Parliament. This is because it is implausible that the drafter was required to create a bar to judicial review on the ground of jurisdictional fact, but not jurisdictional law. The divide between law and fact is notoriously difficult to discern.

It was further submitted by Professor Bailey that Lord Carnwath’s approach is dangerous, because it demonstrates a disregard for Parliament’s intention. Professor Bailey accepted that clearer words could have been used to oust the High Court’s jurisdiction, but that does not mean the language actually used in s.67(8) is sufficiently clear.

It is hard to read Lord Carnwath’s judgment without concluding that Parliament is unable to create ouster clauses. As Professor Young noted, this places a limit on Parliamentary sovereignty. Professor Bailey again saw danger in this approach. Unlike the current restrictions placed on Parliamentary sovereignty, namely the European Communities Act 1972 and s.3 of the Human Rights Act 1998 (the interpretative obligation), the limitation proposed by Lord Carnwath is imposed by judges. The ‘Rule of Law’ is not enshrined in statute and is, therefore, a comparatively insecure basis for Lord Carnwarth’s conclusion. To put it another way: this challenge to legislation is not based on statue previously passed by Parliament, but rather arises by judges asserting that their interpretation of the common law means a particular law can be overruled.

Professor Bailey argued that if the judiciary is to adopt Lord Carnwath’s methodology, then it ought to be open about it. However, the current political context means it is not be the best time for judges to propose placing a limit on Parliamentary sovereignty. In this respect, there is much to be said for Lord Lloyd-Jones’ position ‘safely behind the parapet’.

Professor Young, Professor Feldman and Professor Bailey’s full papers, of which this is a summary, are available here, here, and here.

This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.

A number of papers from the conference are available here.

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