Distinguishing Anisminic? Ouster clauses, parliamentary sovereignty and the Privacy International case

Ouster clauses raise difficult questions about the relationship between the constitutional principles of the rule of law and the sovereignty of Parliament — as the disagreement between the two judges in this case demonstrates

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Senior judges occasionally find it hard to resist the temptation to speculate about whether parliamentary sovereignty is ‘absolute’ — which, of course, amounts to speculating about whether Parliament is really sovereign at all. One of the principal triggers for such speculation is the question whether Parliament is capable of ousting the courts’ judicial review jurisdiction. Perhaps most notable in this regard is Lady Hale’s speech in R (Jackson) v Attorney General [2005] UKHL 56, delivered not long after the Government, yielding to intense criticism, removed an ouster clause from what became the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The courts, said Lady Hale, may reject an attempt by Parliament to ‘subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny’. Meanwhile, in A v B [2009] EWCA Civ 24, Laws LJ said that: ‘It is elementary that any attempt to oust altogether the High Court’s supervisory jurisdiction over public authorities is repugnant to the constitution.’

Against this background, R (Privacy International) v Investigatory Powers Tribunal [2017] EWHC 114 (Admin), about which my colleague Dr Paul Daly has also written, perhaps comes as something of a damp squib — for in it, the Divisional Court accepted that Parliament had succeeded in ousting the High Court’s judicial review jurisdiction. Does this mean that the judges’ bark is invariably worse than their bite when it comes to ouster clauses? The answer, it seems, is that it depends on the judge — as the disagreement between the President of the Queen’s Bench Division, Sir Brian Leveson, and Leggatt J demonstrates.

The claimant wished to seek judicial review of a decision taken by the Investigatory Powers Tribunal (‘IPT’). However, section 67(8) of the Regulation of Investigatory Powers Act 2000 provided that:

Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders 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.

Section 67(9) went on to require the Secretary of State to provide for appeals to a court in respect of the exercise of some of the IPT’s functions. However, section 67(9) was never brought into force, meaning that the Secretary of State was never required to provide for appeals; and the discretion to provide for appeals conferred by section 67(8) was not once exercised. (The position is now different, a statutory right of appeal having been created by the Investigatory Powers Act 2016.) Against this background, the Court had to determine whether section 67(8) really precluded judicial review of the IPT.

It is worth noting that the language of section 67(8) of the 2000 Act is similar, albeit not identical, to that of section 4(4) of the Foreign Compensation Act 1950 as originally enacted. That provision — which provided that ‘The determination by the [Foreign Compensation] Commission of any application made to them under this Act shall not be called in question in any court of law’ — was of course at the centre of the House of Lords’ seminal decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. The Appellate Committee concluded in Anisminic that section 4(4) of the 1950 Act did not preclude judicial review, holding that ‘determinations’ were protected only if they lay within the Commission’s jurisdiction. In Privacy International, the Court rightly placed little emphasis on the additional words — ‘including decisions as to whether they have jurisdiction’ — in the 2000 Act. As counsel for the claimant put it, the effect of those words was surely only ‘that a lawful decision by the IPT that it did or did not have jurisdiction in a particular case cannot be impugned’.

Sir Brian Leveson P ‘s starting point was that while it is ‘not in issue that Parliament is able to oust the jurisdiction of the court provided it does so in appropriately clear terms’, the courts ‘will presume against the conferment of such a power save in the clearest cases’. The question then became whether ‘appropriately clear terms’ had been used. Given the authority of Anisminic, the answer to that question might have seemed obvious: if section 4(4) of the 1950 Act was insufficient, so too must be the very similarly worded section 67(8) of the 2000 Act. However, this linguistic similarity was considered to be of only limited relevance by the President. Nor indeed were the (limited) semantic differences between the two provisions considered to be of paramount importance. Rather, he adopted contextual approach, opining that ‘the proper approach to interpretation of this (or any) statutory provision is not simply a matter of looking at the words and comparing them with other words used in another statute where the context might be entirely different’. Applying this approach, he concluded that:

There is a material difference between a tribunal — such as the Foreign Compensation Commission whose ‘determination’ was in issue in Anisminic, [the Special Immigration Appeals Commission], or the Upper Tribunal (when dealing with appeals from the First-tier Tribunal) — which is adjudicating on claims brought to enforce individual rights and the IPT which is exercising a supervisory jurisdiction over the actions of public authorities. In the former case there are compelling reasons for insisting that a decision of the tribunal is not immune from challenge and that, if the tribunal follows an unfair process or decides the case on a wrong legal basis, the decision may be subject to judicial review by the High Court.  The need, and indeed the justification, for such judicial review is far less clear where the tribunal (here the IPT) is itself exercising powers of judicial review comparable to those of the High Court.

Leggatt J’s judgment forms an interesting counterpoint to Sir Brian Leveson P’s. (The former did not formally dissent from the latter’s conclusion as to the effect of section 67(8), but he made his disagreement plain.) Indeed, the contrast between the two judgments reveals — in two respects — what is inevitably going on, at least beneath the surface, when courts confront ouster clauses. First, the court is making a determination about what the rule of law requires — and thus about how constitutionally offensive the unavailability of judicial review would be in the context of the case.  Second, the court is deciding whether the constitutional pull of the rule of law is strong enough to justify reading the ouster clause counter-textually so as to preserve judicial review. (Looked at from the opposite end of the telescope, the court is determining whether the constitutional pull of the principle of parliamentary sovereignty is sufficient to invest the statutory text with the capacity to override the rule of law.) Leggatt J, it appears, differed from the President on both of these matters.

As to the first, he was unpersuaded that the claim exerted by the rule of law was weakened by the mere fact that the IPT’s jurisdiction was supervisory. The nature of the IPT’s jurisdiction notwithstanding, Leggatt J’s view was that the rule of law requires the IPT to be susceptible to judicial oversight — both in order to provide ‘a means of correcting legal error’ and because ‘[t]he rule of law requires that the law should, so far as practicable, be consistently interpreted and applied’. Permitting the IPT to operate as a ‘legal island’ would be inimical to this aspect of the rule of law.

Leggatt J was thus firmly of the view that reading section 67(8) as excluding judicial review would (given the unavailability of appeal) affront the rule of law. The question then became whether the constitutional pull exerted by the rule of law was strong enough to justify reading the statute in a way that preserved judicial review. Leggatt J thought that it was. His reasoning on this point is particularly interesting. On one level, his approach is orthodox, implying a disagreement only of degree with Sir Brian Leveson P. For instance, Leggatt J said that ‘statutes are interpreted on the understanding that Parliament does not intend to insulate a court or tribunal from it’ and that he was ‘extremely reluctant to attribute to Parliament an intention to achieve a result which would be so clearly inconsistent with the rule of law’. So far, so orthodox. However, the following passage from Leggatt J’s judgment is particularly telling, and strikes a rather different note:

Although it has repeatedly been said that Parliament could, in principle, exclude the possibility of judicial review by using language of sufficient clarity, it is striking that no language so far used (unless it be that in the present case) has been held to be sufficiently clear to have that effect.  Moreover, it is difficult to conceive how Parliament could have been more explicit than it was in section 4(4) of the Foreign Compensation Act 1950, other than by referring to ‘purported determinations’ rather than simply ‘determinations’ of the tribunal.

It is not entirely clear from this paragraph just how difficult Leggatt J considers the exclusion of judicial review to be. It may be that he simply intends to suggest if Parliament had used even more specific language — e.g. by excluding review even of ‘purported determinations’ — it would have been more likely to succeed in ousting the courts’ jurisdiction. On the other hand, the first sentence of the passage set out above is intriguingly phrased, and might be taken at least to signify some doubt as to the veracity of the familiar proposition — found, of course, in Sir Brian Leveson P’s judgment — that Parliament can preclude review if only it uses sufficiently clear language. It is clear, at any rate, that for Leggatt J Parliament can face a very steep uphill struggle if it wishes to formulate legislation so as to shield decisions from judicial review, the exact severity of the incline being a function of the degree of the threat to the rule of law presented by the ouster provision taken in its statutory and constitutional context.

Ultimately, it seems to me that the difference between the two judges in Privacy International reduces to a disagreement about the relative constitutional weight to be accorded (on the one hand) to parliamentary sovereignty and hence to the statutory text, and (on the other hand) to the rule of law and hence to the preservation of judicial review in the face of the ouster clause. Leggatt J makes it tolerably clear that, as far as he is concerned, the relative weight of the rule of law can, in relevant circumstances, be so strong as to come close to overwhelming the statute. But the question whether the rule of law can actually overwhelm the statute — in the sense of licensing straightforward judicial disobedience to it — is still unanswered. That it should remain so is perhaps as inevitable as it is desirable.