Hayley J. Hooper: Balancing Access to Justice and the Public Interest: Privacy International and Ouster Clauses in the Broader Constitutional Context

In November 2017, the Court of Appeal in R (Privacy International) v Investigatory Powers Tribunal unanimously held that a so-called “ouster clause” in respect of the of the Investigatory Powers Tribunal (IPT) was lawful. This decision may appear odd as out of step with what appears to be a steady march towards increasingly concrete principles of legality and the rule of law, limiting the capacity of Parliament to interfere with, or constrain, judicial review. Ever since the House of Lords read down the scope of an ouster clause in the seminal Anisminic decision so as to permit continued judicial oversight of the Foreign Compensation Commission for error of law it has always been doubted whether an ouster clause – however tightly drafted – would pass judicial muster. Instinctually, then, we might wonder whether Privacy International is an aberration, an outlier, or if it was simply wrong decided. This instinct is prima facie validated when read alongside judicial dicta doubting the ability of Parliament to legislate to restrict access to judicial review in cases such as Jackson, AXA General Insurance, and UNISON (discussed below). However, when we reconsider the substance and context of Privacy International, reconsider the ruling in Anisminic itself, and the debate about the balance between judicial review and primary legislation in the wider context, doubt is cast upon these instincts. Understood in this context, it is clear that the Court of Appeal reached the correct decision.

Privacy International in the Court of Appeal

The IPT is a special tribunal for the purposes of hearing complaints against the security and intelligence services (MI5, MI6, and GCHQ) established by the Regulation of Investigatory Powers Act 2000 (RIPA). RIPA consolidated the subject matter of several pre-existing tribunals which also carried the same ouster clause in their enabling acts. The IPT is staffed by High Court judges and other distinguished lawyers. In R (A) v Director of Establishments of the Security Service the Court of Appeal recognised that it was ‘a judicial body of like standing and authority to that of the High Court’.  Unlike an ordinary tribunal, the IPT rules place the tribunal under a general duty of non-disclosure, and do not require it to hold oral hearings, although it may do so at its own discretion. The IPT meets in camera and adheres to a strict ‘neither confirm nor deny policy’ in view of the national security sensitive subject matter with which it deals. Such materials are not ordinarily admissible in courts. The IPT, however, can compel disclosure of information from the executive; but cannot disclose that information to the public. Such information can be disclosed to complainants only with the consent of the relevant executive agency. Complainants may not even know when their case is being considered. The statutory regime was designed by Parliament not to permit such activity.

Despite this, the IPT is seen to be broadly human rights compliant. In Kennedy v United Kingdom, noting the context of a complaint of unlawful covert surveillance, the European Court of Human Rights held that the IPT procedure was compatible with both Article 6 (right to a fair trial) and Article 13 (right to an effective remedy) of the European Convention on Human Rights (ECHR). The IPT is the exclusive body for hearing claims against any of the intelligence services under section 7 of the Human Rights Act 1998. Despite recommendations from the Independent Reviewer of Terrorism Legislation, unlike the High Court, the IPT cannot make a ‘declaration of incompatibility’ using section 4 of the Human Rights Act 1998. In response to trenchant criticism from academics and civil society, the IPT has moved towards holding some public hearings on matters of law. These take place using ‘assumed facts’, that is the facts alleged by the non-government party regarding the conduct of the intelligence agencies are assumed to be correct, and rights-based litigation proceeds on that basis. By the time the Court of Appeal was seized of the case, RIPA 2000 had been amended by the Investigatory Powers Act 2016, s 242(1) creating a right of appeal from the IPT on a ‘point of law against any determination of the Tribunal’.

The challenge to the ouster clause in section 67(8) RIPA was a preliminary issue as part of the campaign group Privacy International’s challenge to the legality of GCHQ’s alleged bulk hacking of phones and computers. The ouster clause reads as follows:

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

Counsel on behalf of Privacy International made two arguments, both of which were ultimately unsuccessful. First, that the ouster clause was insufficiently clearly drafted so as to preclude judicial review for error of law, and second, that Parliament could not have intended to exclude judicial review, because this would run contrary to the principle of legality. Legality ins this sense encompassed both the rule  in the Simms case, and a strong presumption that Parliament intended to legislate with respect for the rule of law, human rights, and ‘other fundamental principles of the constitution’. Expressed as such, legality required the continued recourse to judicial review of an ‘inferior tribunal’- the classification of the Foreign Compensation Commission adopted by the House of Lords in Anisminic, which Privacy International also considered to apply to the IPT.

In response, counsel for the Tribunal argued that the ouster clause was sufficiently clear so as to exclude judicial review and more importantly, that, the Court’s approach to reading any purported ouster clause should take account of the fact that the principle of legality is in fact contextual: the nature of the body being insulated from judicial review must be considered as part of the approach to statutory construction. In respect of the context, the Court of Appeal noted that the IPT did not work with the same subject matter as the ordinary courts, but with a range of evidentiary materials which could jeopardise the interests of national security if revealed in open court.

The Court of Appeal considered the wording of the purported ouster clause to be sufficiently clear. What mattered was not speculative inferences about parliamentary intention vis-à-vis the rule of law (the words were given their ordinary meaning), but instead, the nature of the body being insulated from judicial review. The Court acknowledged that the language used by the draftsman in s67(8) of RIPA was ‘materially different’ from the language of the ouster clause at the centre of the Anisminic case. It expressly sought to exclude judicial review of claims relating to jurisdictional error of law. Moreover, the IPT’s equivalent status to the High Court meant that it was not an ‘inferior tribunal’.

Anisminic Revisited

Counsel for Privacy International was not misguided in their submission that the principle of legality was a ‘strong presumption’ of statutory interpretation. However, since Anisminic the courts have recognised that Parliament may properly seek to ration (as opposed to eliminate) legal controls in the face of competing considerations. Anisminic is held up as a judicial defence of the rule of law in the face of a (seemingly clear) ouster clause. However, it should not be taken to be authority for the idea that any attempt to restrict judicial review amounts to a violation of the rule of law. It was clear on the face of the ruling that the context of the challenged mattered. Lord Wilberforce suggested that although tribunals had limited authority derived from statute, meaning that there will always be a realm into which the tribunal is limited from entering, ‘the strength and shade of these matters will depend upon the nature of the tribunal and the kind of question it has to decide’.

Several decades later a similar line of reasoning seems to have underpinned the Supreme Court’s rationale in Cart for limiting judicial review of the Upper Tribunal to situations involving an ‘important point of practice of principle’ rather than a jurisdictional error of law per se.  Although unreviewable courts of limited jurisdiction were ‘exceptional’, the Supreme Court responded to the question ‘what level of independent scrutiny of the tribunal system is required by the rule of law?’ by acknowledging that unrestricted judicial review of un-appealable decisions was a disproportionate allocation of resources in the administration of justice. Of course, Cart did not involve the determination of the validity of an ‘ouster clause’. However, the comparison remains apt. Both cases involved a need to ration legality against a competing interest. In Cart it was the resource considerations of a broad swathe of public administration, in Privacy International it was the continued functioning of the national security state. The point is that courts have always recognised that judicial control of legality can be balanced against competing imperatives, so long as it is not entirely eliminated (as was the potential impact of the ouster clause in Anisminic).

Broader Implications and Context

The question remains, then, whether the draftsman has simply settled upon the winning formula for limiting judicial review. Or, indeed, whether Privacy International represents a retreat the seemingly absolutist judicial stances on the importance of the rule of law in relation to parliamentary sovereignty. In fact, it represents neither. The decision in Privacy International may, at first sight, look out of step with previous judicial proclamations on the relationship between democracy and judicial review, particularly in respect of ouster clauses. It is therefore important to trace this history to explain that the Court of Appeal’s decision can indeed be rationalised within the broader context of the constitution.

At the beginning of the twenty-first century a clearer picture began to emerge regarding the courts’ view of the precise limits of Parliament’s ability to encroach upon the rule of law.

An ouster clause in the Immigration and Asylum (Treatment of Claimants), etc. Bill, tabled by the New Labour government in 2003/2004 brought such questions sharply into focus. The Bill contained an ouster clause which purported to preclude further judicial review for error of law in respect of the new single tier appeal process against immigration decisions of the Home Secretary. In a lecture to students in Cambridge, Lord Woolf remarked that:

[If] this clause were to become law, it would be so inconsistent with the spirit of mutual respect between the different arms of government that it could be the catalyst for a campaign for a written constitution…What is the use of courts, if you cannot access them?  (Woolf (2004) 63(2) Cambridge Law Journal 317, 329)

Clause 11, which was removed from the final Act, would have resulted in no rights of appeal from the Asylum Appeal Tribunal, and no judicial review of the tribunal’s decisions. It would also have precluded any legal challenge to Home Office acts connected with subsequent deportation. The restriction on access to justice would have been nothing short of categorical. Woolf’s sentiments were echoed in the Jackson case, (decided in the same period) by Lords Hope and Steyn, and Lady Hale. Lord Steyn explained that an attempt to abolish judicial review via an Act of Parliament would not automatically be judged to be valid according to the principle of parliamentary sovereignty (Jackson [102]). Lord Hope in AXA General Insurance re-emphasised his dictum in Jackson that the ‘rule of law is the ultimate controlling factor’ on which the constitution is based’ (Jackson [107], AXA [51]) and clarified that, as it was not impossible for a government with a parliamentary majority to use that power to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual’, the courts must realise that the rule of law ‘requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.’ (AXA [51]). More recently, in UNISON the Supreme Court held that the fees payable by claimants before the Employment Tribunal were unlawful at common law because they constituted an unlawful interference with the common law right of access to justice. Lord Reed, for the majority, explained that ‘even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation…the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve.’ (UNISON [88]). The substance of the UNISON challenge was that the fees were prohibitively expensive compared with ordinary courts, and would have a disproportionate impact upon certain categories of claimants, and women in particular.

At first blush this looks like judicial radicalism. But the dicta in these rulings are not wild, unrestricted claims to judicial supremacy in the face of a constitution based upon parliamentary sovereignty and representative democracy. Instead, they can be seen to enshrine two principles, into which the ratio in Privacy International neatly fits. The first is the (democratically necessary) commitment of the judiciary to the protection of access to justice. Or more plainly, the simple act of keeping courts open to the individual. Access to justice is, after all, the right which facilitates all other legal rights. Clause 11, and the Fees Order at issue in UNISON constituted a near total restriction upon access to justice. This was not the case in Privacy International.

The second facet of Lord Reed’s dictum recognises a principle that has been present since Anisminic, namely that restrictions on access to justice must be proportionate. This line of dicta suggests judicial respect for democratically mandated legislation, up and until access to justice is realistically the subject of manifest interference (or more properly: elimination). Therefore, the Court of Appeal’s conclusion in Privacy International fits with the history of the treatment of ouster clauses and similar threats to the institutional capacity of the courts; it is not an outlier. Unlike the Foreign Compensation Commission, the IPT is not an ‘inferior tribunal’, nor is it precluded from legal oversight: appeal on a point of law is possible. The decision is simply a restatement of the principle that legality does not automatically ‘trump’ democratic intrusions into the legal process. The courts are willing to tolerate some democratic control of legal institutions via Acts of Parliament provided those intrusions are not absolutist and made in order to justify the maintenance of some other worthy facet of the public interest.

Hayley J. Hooper, Fellow in Law, Christ Church, University of Oxford

(Suggested citation: H.J. Hooper, ‘Balancing Access to Justice and the Public Interest: Privacy International and Ouster Clauses in the Broader Constitutional Context’, U.K. Const. Law (12th Feb. 2018) (available at https://ukconstitutionallaw.org/))