Mike Gordon: Privacy International, Parliamentary Sovereignty and the Synthetic Constitution

The case of R (Privacy International) v Investigatory Powers Tribunal  is the latest in a series of high profile judicial engagements with the doctrine of parliamentary sovereignty.  The case concerned the legal status of s.68(7) of the Regulation of Investigatory Powers Act 2000, and in particular, whether this provision constituted a successful attempt to oust the jurisdiction of the High Court to hear challenges to the decisions of the Investigatory Powers Tribunal by judicial review.

The Supreme Court divided this question into two parts, and the constitutional doctrine of parliamentary sovereignty was implicated in each strand in fundamental ways: first, in the specific context of interpreting Parliament’s legislative intention in enacting a provision which purported to immunise decisions of the Investigatory Powers Tribunal from further legal challenge; and second, in relation to whether it can ever be legally possible, in general, for Parliament to enact an ouster clause of this kind.

This post reflects on the judicial attitudes to parliamentary sovereignty evident in Privacy International, the force of this approach when considered in the context of other recent case law on this doctrine, and what this might suggest about the broader use of constitutional principles in the UK Supreme Court.  There are reasons to doubt that the majority decision gives appropriate weight or effect to the idea of legislative sovereignty.  Yet more significant than the specific outcome of Privacy International is the overarching constitutional framework in which the questions raised in this case are addressed.  Privacy International shows this framework is still being developed in the courts, and I will argue that this process of constitutional construction needs to be subject to critical scrutiny.

Parliamentary Sovereignty and Statutory Interpretation

The question of the proper approach to the interpretation of ouster clauses has long been a challenging one, since at least the (in)famous decision of the House of Lords in Anisminic v Foreign Compensation Commission.  In that case, a majority of the Law Lords held that a provision to establish that ‘[t]he determination by the commission of any application made to them… shall not be called in question in any court of law’ was ineffective to prevent judicial review.  In an exercise of linguistic creativity, the House of Lords concluded that where the Commission made an error of law while allocating compensation to corporate entities following the Suez crisis, it exceeded its jurisdiction – such an application had not therefore been determined and rendered immune from further legal challenge, but was instead a ‘purported determination’ which the courts could declare a nullity.

For those who were already unconvinced by the legal magic at the heart of Anisminic, the result of Privacy International will appear similarly challenging, for the ouster clause in s.68(7) of RIPA seemed explicitly designed to cut off this line of argument.  It provided that ‘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’.  This represents an upgrading of the language rejected in Anisminic in a number of ways, including adding ‘awards, orders and other decisions’ to the category excluded from legal challenge, and attempting to immunise even determinations touching on the jurisdiction of the Tribunal from further review.  Yet by a 4-3 majority in the Supreme Court, this statutory attempt to confront the logic underlying the decision in Anisminic was to fail.

This generates a problem from the perspective of parliamentary sovereignty.  It is well established that, as Lady Hale put it when giving the unanimous judgment of the court in R (Black) v Secretary of State for Justice, ‘[t]he goal of all statutory interpretation is to discover the intention of the legislation’, and ‘[t]hat intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose’ [36].  The words used by Parliament in s.68(7) are clear, and understood in the context of the decision in Anisminic, it seems even more clear that their purpose is to oust judicial review.  In confirming an alternative statutory construction – one which is the opposite of what Parliament seems to have intended – the Supreme Court appears to be challenging the legislature’s legally unlimited law-making authority.

Of course, as the considerable body of case law and commentary around Anisminic demonstrates, we are long past the point where ouster clauses can be assessed on face value.  If the provision in question in Privacy International is compared with that in Anisminic, it is clearly a more elaborate attempt to exclude judicial review.  Yet other comparators also exist: the ultimately abandoned draft clause 108A proposed in clause 14 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003 (as introduced in the House of Lords) ran to 60 lines, prompted a public stand-off between the judges and the New Labour government, and (many believe) led to Lord Steyn, Lord Hope and Baroness Hale overtly speculating in R (Jackson) v Attorney General  about the possible existence of common law limits on parliamentary sovereignty.  Judged from that vantage point, the ouster clause in Privacy International starts to look like a very half-hearted attempt to avoid established precedent, a claim developed in further detail by Adam Tucker.

As the delicately balanced 4-3 decision in Privacy International shows, there is always scope for disagreement about Parliament’s true intention when enacting legislation, and this case will provide further fuel for the debate about judicial fidelity to statutory language.  The stakes are certainly lower in this context, given s.68(7) has already been repealed, showing a lack of deep rooted legislative commitment to the always controversial decision to try to exclude judicial review.  It is also not clear how meaningful in practice it will be to expose the decisions of the Investigatory Powers Tribunal to additional legal scrutiny.  The Tribunal is already staffed by senior judges from the same ranks as those who will hear applications for judicial review, and (by s.67(2)&(3)(c)) it is explicitly required to apply the same principles as would be applicable in judicial review.  Whether this will offer any substantial additional accountability for the activities of the intelligence services scrutinised in the Tribunal, or will simply elongate the standard avenues of legal challenge, remains to be seen.

Yet the extension of the Anisminic line of case law in Privacy International also comes at a cost, in terms of the public understanding of the law.  Even if it is defensible to say that Parliament should by now be aware of the need for absolute precision to demonstrate an intention to exclude judicial review, Privacy International confirms we are well past the point where clear words are not enough to achieve the desired effect.  If the monstrosity of clause 108A from 2003 now constitutes the bar to successfully provide that an actor other than the ordinary courts can have the final say in a decision-making process, we have surely reached an intolerable level of artificiality in the interpretation of legislative language, and, from a rule of law perspective, the regrettable position where only an elite understanding of legal doctrine will provide the necessary context to comprehend the meaning of statute law.

To oust judicial review may always be a controversial policy choice, but there is no reason it cannot sometimes be a legitimate one depending on the socio-economic context, and the design of the decision-making process.  Crucially, it is also a policy choice that must remain open to a Parliament in possession of legal sovereignty, even if subject to increasingly contrived requirements of clarity.  Yet Privacy International also features a contribution to the contemporary judicial tradition of doubting that full scope of Parliament’s legislative power, as a supplement to the majority’s unwillingness to accept the ordinary meaning of Parliament’s legislative language.  This reveals a central tension in the reasoning of the leading judgment, in so far as it is premised on the idea that there is simply a presumption against interpreting legislation in such a way as to permit the exclusion of judicial review, but at the same time suggests this presumption is in fact a disguised prohibition established and enforced by the courts.

Parliamentary Sovereignty and Rule of Law Limitations

The most acute challenge to parliamentary sovereignty appears in the judgment of Lord Carnwath, with whom Lady Hale and Lord Kerr agreed.  These comments are minority obiter dicta, for as Lord Carnwath noted, it was not necessary to decide this second issue, and Lord Lloyd-Jones concurred with his leading judgment only as to the interpretation of s.68(7).  Yet despite their doubly qualified authority, these comments will no doubt attract considerable attention because, if accepted, they would amount to a rule of law constraint on the sovereignty of the legislature.  According to Lord Carnwath:

I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law. [144]

Lord Carnwath’s attempt to distinguish his elevation of the rule of law from the minority obiter dicta in Jackson is unconvincing – the relationship between Parliament and the courts cannot simply be ‘governed by accepted principles of the “rule of law”’ [119] in a constitutional system which allocates legally unlimited law-making power to the legislature.  Instead, the constitutional status of the rule of law is exactly what is in question.  And this is regardless of the fact that Parliament has negatively affirmed the enduring existence of the ‘constitutional principle of the rule of law’ in s.1 of the Constitutional Reform Act 2005 – this minimalist recognition certainly cannot be seen as an uncontroversial invitation for the courts to ‘determine’ the ‘content and limits’ [121] of a multi-faceted constitutional norm which has complex legal, political and (arguably) moral dimensions.

Lord Carnwath is therefore contributing to, rather than avoiding, the ‘debate’ first manufactured in Jackson, and embellished in Axa, Moohan, and Public Law Project, as to whether there are judicially defined limits on the content of an Act of Parliament.  To assert that ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’ [131] is necessarily to reject parliamentary sovereignty, which functions to establish exactly the opposite state of affairs.

It would be easy to read too much into these claims, which add to the volume of judicial uncertainty about parliamentary sovereignty, but take us no further in principle than previous speculation about the possibility of common law review of primary legislation in exceptional circumstances.  From one perspective, such repetition of the idea that the rule of law has the potential to trump parliamentary sovereignty might be seen to add weight to such judicial claims.  However, by regularising these assertions, but only as an abstract possibility, seemingly never to be acted upon, the opposite effect is arguably being achieved – the emptiness of the rhetoric becomes ever more evident, as familiarity diminishes their force.

Perhaps more significant than whether the courts possess the power hypothesised by some judges, which runs contrary to the fundamental principle of the UK’s constitutional order, is the broader inconsistency in approach this reveals. In Privacy International parliamentary sovereignty is (for a minority) a principle potentially in dispute, if it were ever to collide unavoidably with the rule of law.  Yet in other recent cases, the courts have seemed far less troubled. In Miller, parliamentary sovereignty was an essential constitutional principle for the majority when it could be used to constrain the activities of the executive.  And in the Legal Continuity (Scotland) Bill Reference, parliamentary sovereignty was absolutely crucial when settling a clash with the devolved administration in Scotland in favour of the UK’s central institutions (and this was for an almost identically constituted Supreme Court to that which decided Privacy International, with the only change in the former case being Lord Hodge sitting in place of Lord Wilson).

The legacy of Privacy International is not, therefore, that it heralds the limitation of Parliament through the rule of law, and the abandonment of parliamentary sovereignty which would inevitably result.  On the contrary, such speculation about this doctrine is not determinative of the scope of parliamentary legislative authority, for if Parliament truly is sovereign, this is not a matter the courts can decide.  Yet the case is revealing in so far as it provides a clear insight into the constitutional framework within which many judges increasingly see ideas of legislative authority operating.

Privacy International and the Synthetic Constitution

The critical problem with the body of doubts about parliamentary sovereignty to which Privacy International now adds is that it presents only a partial view of the UK constitution.  This is a constitution in which legal principles are developed in isolation from the political dimensions of public power, attributed authority over and above political (and especially democratic) principles, and absent the input of the political institutions.  The artificiality of this approach is most apparent in attempts to establish the courts as the potentially ultimate constitutional authority in some contexts, but to cling closely to parliamentary sovereignty in others.  The effect is that a synthetic vision of the constitution is increasingly evident and prevailing in the UK’s highest courts – it is a framework which is superficially plausible, perhaps in some ways even attractive, but equally one which we are not compelled to accept as absolute or authentic.

Lord Carnwath’s leading judgment in Privacy International is a further contribution to this trend, not just in the way it perceives the limitation of parliamentary sovereignty, but in framing this as part of a ‘more flexible approach to the relationship between the legislature and the courts’  which is ‘wholly consistent with the modern constitutional settlement’ [131] . The status of parliamentary sovereignty is an emblematic issue given its function is to establish the constitutional primacy of political decision-making in the pre-eminent democratic institution of UK central government.  Yet conceptualising the limitation of parliamentary sovereignty is just one part of a broader attempt to reconstruct the UK’s constitutional framework.  Other core elements of this scheme are the judicial supposition of a scheme of ‘constitutional statutes’ with enhanced legal status, from Thoburn onwards, and the elaboration of a distinct category of ‘constitutional principles’ in cases such as HS2, again with additional legal weight attaching to that designation.  And prime among these principles is the rule of law, which after the decision in Evans, coupled with that in Privacy International, appears ever more focused on vindicating the significance and finality of judicial oversight of decision-making, regardless of the intentions of the UK’s legislative body in establishing alternative arrangements.

The manner in which this synthetic constitution is being constructed through judicial action, and presented as a ‘modern constitutional settlement’, obscures the fact that there should be a choice: we are not compelled to accept the structures being developed by the courts, which are far from immutable or inevitable.  It is important that we recognise the contestability of this evolving framework, retain the scope to scrutinise the core components and characteristics of this scheme as they are webbed together, and the capacity to challenge the right of the courts to author it.

It is not therefore sufficient to question the interpretation of legislation, or the extent to which parliamentary sovereignty is now limited through the rule of law.  Instead, we can also challenge the authenticity of the constitutional framework in which these issues are being judicially confronted, rather than feel obliged to accept this vision on its own terms.  For at the very least, Privacy International provides further confirmation that this framework is quickly coming to dominate, and arguably also distort, our understanding of key constitutional norms, values and relationships.

I am grateful to Adam Tucker for very helpful comments on this post.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

(Suggested citation: M. Gordon, ‘Privacy International, Parliamentary Sovereignty and the Synthetic Constitution’, U.K. Const. L. Blog (26th Jun. 2019) (available at https://ukconstitutionallaw.org/))