Introduction

Earlier this month, the Supreme Court heard argument in R (Privacy International) v Investigatory Powers Tribunal. This litigation has already attracted substantial scholarly attention in the published literature (notably in articles by Paul Scott and Tom Hickman in Public Law) and online (including a symposium at the Administrative Law in the Common Law World blog). In this two-part post, I seek to situate the case in its wider constitutional context, and argue that the Supreme Court ought to abandon the narrow approach the courts have adopted so far.

Privacy International is an NGO which (amongst other activities) advocates for legal safeguards on surveillance. They believe themselves to have been the victim of unlawful surveillance by GCHQ. Their challenge to the lawfulness of this surveillance failed before the Investigatory Powers Tribunal. But that failure turned, in part, on the IPT’s construction of a provision in the Intelligence Services Act 1994 – namely its answer to the question of whether s5 of that Act authorises the use of a certain kind of warrant issued in general terms (reluctantly referred to as “thematic warrants” by the IPT) or whether it requires warrants with greater specificity.

Privacy International applied for judicial review of the IPT’s decision, on the grounds that the IPT got that question of law (i.e the construction of ISA s5) wrong. But an ouster clause appears to stand in the way of that application – namely section 67 (8) of the Regulation of Investigatory Powers Act 2000, which provides (in the relevant part) that:

“awards and other decisions of the [Investigatory Powers] 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 case, then, turns on the seemingly narrow question of whether or not this statutory provision shields the IPT from Privacy International’s application for judicial review. Both the Divisional Court and the Court of Appeal concluded that it does.

Writing for a unanimous Court of Appeal, Sales LJ found that “this case turns on a short point of statutory construction in relation to RIPA” [24], interpreted s67(8) such that it protected the IPT from the review sought by Privacy International, and emphatically described the grounds of that conclusion: “This interpretation is given clearly, in my view, by the language used in the provision as read in its legislative context.” [26]

In these two posts, I argue that this is the wrong approach to take to this kind of case. The common law imposes on judges an obligation to treat ouster clauses in a particular, and particularly demanding, way. The legal effect of an ouster clause is never a “short point of statutory construction”, and the meaning of ouster clauses cannot be found merely from their language and legislative context. The Court of Appeal failed to honour that obligation, and that misstep is a serious constitutional mistake, which leads not just to the wrong outcome in Privacy International itself, but also misconceives the constitutional position of ouster clauses more generally, and threatens serious damage to the rule of law in future.

The Irrelevance of Parliamentary Intention

The constitutional position I have in mind is famously illustrated (although not established) by the decision of the House of Lords in Anisminic v. Foreign Compensation Committee [1968] UKHL 6. The shape of Anisminic is the same as the shape of Privacy International: Anisminic sought judicial review of a decision of the FCC, but an ouster clause (s4(4) of the Foreign Compensation Act 1950) appeared to block their way. It read:

“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”

The House of Lords interpreted this clause such that it failed to protect the FCC from the review which Anisminic sought. Lord Reid explained the background to the decision at the start of his judgment – first, he noted the “well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly” (170); then he observed that “no case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity”. A majority of the House of Lords found that the decision of the FCC in question was a nullity, with the effect that it was not protected by the ouster.

It is a central feature of Anisminic – one worth emphasising – that the court took this approach because they were obliged to (“must” per Lord Reid). It was not open to them to interpret s4(4) using its language or context alone; the meaning of s4(4) could not be treated as a short exercise in statutory construction. Instead, the court was obliged to depart from the ordinary rules of interpretation in favour of a special restrictive approach applicable to the construction of ouster clauses. Lord Reid’s description of that approach (“strict construction”) made it sound quite anodyne, but it was not. It led the court to depart from legislative intention and from the plain meaning of the provision in question in favour of a reading (even if implausible) which had the effect of frustrating Parliament’s intention to shield the FCC from judicial oversight.

Following Anisminic (and the wider tradition of which it is part) the constitutional position of ouster clauses has been relatively stable for several decades. The courts had made it clear that attempts to draft ouster clauses were likely to fail. And Parliament, in turn, did not threaten that stability. Parliament has known that successfully drafting one would involve winning an involved and probably iterative game of ‘cat and mouse’ with the courts, and that crafting such a clause would turn not on Parliament’s ability to express its intentions with clarity, but on its ability to frame those intentions in a way which was insulated against the court’s far-reaching duty of hostile interpretation. So (in consequence?) Parliament never tried to find that magic formula. This is the background against which s67(8) falls to be interpreted.

It might seem controversial to characterise the upshot of Anisminic in this way in a constitution based on parliamentary sovereignty. Two factors are needed to put my position into context.

First, although the interpretive doctrine I have just described does indeed require courts to depart from and sometimes even frustrate the intention of Parliament, this is not a particularly novel situation in the contemporary constitution. In fact, this kind of interpretive hostility has now become a familiar method by which our constitution softens the potentially hard edges of legislative sovereignty: Parliament itself mandated an analogous approach to potential statutory abuses of human rights in s3 of the Human Rights Act; the risk of disapplication of legislation for incompatibility with EU law under Factortame is mitigated through a similar interpretive doctrine rooted in Marleasing, and the courts developed the principle of legality, to protect the rule of law and human rights against legislative infringement. The interpretive techniques employed in each of these domains vary in intensity and in rationale, but all have the capacity to overcome Parliament’s intention: see Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, Webb v. EMO Air Cargo (UK) Ltd (No. 2) [1995] 3 WLR 1454 and R (Evans) v Attorney General [2015] UKSC 21 respectively. So although my characterisation of the common law governing the interpretation of ouster clauses has an air of heresy about it, I am only really claiming that such clauses are subject to a variant of a familiar technique for resisting certain classes of constitutionally objectionable parliamentary intention without directly threatening parliamentary sovereignty.

Secondly, I am not reconstructing a single difficult decision, Anisminic, in light of contemporary circumstances or trends. The requirement that courts interpret ouster clauses with hostility, and that this could lead them to depart from legislative intention, was both widely accepted before Anisminic and integral to the reception Anisminic received at the time it was decided. In 1955, for example (that is, 13 years before Anisminic), Stanley de Smith catalogued – and I think affirmed – the wide variety of interpretations which courts had used to frustrate legislative attempts to restrict the availability of judicial review, noting that “the courts have long been jealous to resist encroachments upon their jurisdiction”. And Wade – perhaps the mid-20^th Century’s staunchest defender of parliamentary sovereignty – acknowledged that he had “no doubt….about the intention of Parliament” in passing s4(4) yet nevertheless hailed the courts “achievement” in Anisminic, expressing the hope that it would render “unqualified ouster clauses…unlikely to be used again”. (Constitutional and Administrative Aspects of the Anisminic Case (1969) 85 LQR 198).

In passing s67(8), Parliament frustrated that hope; in Privacy International, there is a risk of the courts undoing that achievement. I explain this in Part 2.

Adam Tucker, Senior Lecturer and Director of Research at Liverpool Law School

(Suggested citation: A. Tucker, ‘Parliamentary Intention, Anisminic, and the Privacy International Case (Part One)’, U.K. Const. L. Blog (18th Dec. 2018) (available at https://ukconstitutionallaw.org/))