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The treatment of ouster clauses in R (Privacy International) v Investigatory Powers Tribunal has been said to violate parliamentary sovereignty. This post disagrees. That assertion, it argues, misapprehends the rule of law as founded upon the sovereignty of ‘Parliament’ by ‘the High Court of Parlyament’ as recognised in the Crown and Parliament Recognition Act 1689. The separation of the supreme court from the legislature in O’Connell v R, and the creation of the Supreme Court by the Constitutional Reform Act 2005, undo neither the parliamentary character of the Court nor its participation in the sovereignty of Parliament. This view supports the dicta of Lord Carnwath in Privacy International, with whom Lady Hale and Lord Kerr agreed, that courts may refuse to recognise or enforce ouster clauses.
A Brief Chronology
In the seventeenth century the supreme court of England and Wales was part of ‘Parliament’. The lay peers sat both as that court and as the upper house of the legislature. The ‘supreme court – legislature’ was called ‘the High Court of Parlyament’ in the Crown and Parliament Recognition Act 1689. Only in the nineteenth century did the supreme court become a specialist body and separate from the legislature, as we shall see. In the seventeenth century James II attacked the rule of law as founded in the High Court of Parliament, a supreme court and legislature. He suspended the effect of the Test Acts which discriminated against Catholics, and thereby purported to bear an extra-parliamentary prerogative that was superior to his prerogative inside the parliament forum. In the bloodless or ‘Glorious’ Revolution of 1688, Parliamentarians reiterated the rule of law, by demonstrating that the executive power acted ultimately inside the High Court of Parliament rather than outside of it. Following the Revolution the Bill of Rights 1688 specified that the monarch continued to make law, suspend law, and tax for example, ultimately with the consent of ‘Parliament’. Article 9 reinforced the requirement that the executive power act ultimately inside the parliamentary forum, by protecting the freedom of speech inside Parliament from any Court of Place out of Parliament. The monarch constituted the executive power until the nineteenth century, when the Representation of the People Act 1832 abolished the ‘rotten’ and ‘pocket’ boroughs controlled by the monarchy and aristocracy. Parliamentarians themselves now appoint and comprise the executive power; the ‘parliamentary executive’. However, since 1844 that membership is drawn from the legislature alone. In O’Connell the lay peers finally conceded that the professional judges who ‘assisted’ them were in fact the real judges of the supreme court of the UK. This recognition of the specialisation of the supreme court separated it from the legislature. The separation was formalised by the Constitutional Reform Act 2005 which established a separate UK Supreme Court in 2009. This post argues below that the separation did not terminate the parliamentary character of the Supreme Court.
The Sovereignty of Parliament
The Revolution established the sovereignty of Parliament as a form of judicial review of executive power, it is submitted. The High Court of Parliament, a supreme court and legislature, validated and authorised executive power, by demonstrating that executive power acts ultimately inside that independent forum rather than outside of it. The Bill of Rights required William III to act ultimately through the High Court of Parliament, when he made law, suspended law or taxed for example. Parliamentarians did not presume to bear a political supremacy over the executive power which remained monarchical until 1832. Instead the Revolutionary sovereignty of Parliament involved the supreme court and legislature authorising the monarch to act as the Sovereign, in Parliament. Three objections to this view are possible.
First, responsible government in the nineteenth century may be said to have fundamentally changed the sovereignty of Parliament. It may be supposed that responsible government instituted the rule of law as founded by the sovereignty of Parliament as ‘parliamentary supremacy’ or ‘legislative supremacy’ to use AV Dicey’s phrase. In this view the legislature does not purport to independently validate and authorise executive power, as did the High Court of Parliament at the Revolution. Instead the legislature is ‘legally the sovereign legislative power in the state’. Dicey pointed to the Septennial Act 1715 as ‘the result and the standing proof of such Parliamentary sovereignty’, because Parliament prolonged its own legal existence by the Act. This view is unconcerned with the parliamentary character of the supreme court either before or after its separation from the legislature in O’Connell. It is submitted that the participation of the supreme court in the High Court of Parliament precluded independent judicial review, in the modern sense, of legislation such as the Septennial Act. A judicial appeal could ultimately have gone to the judicial House of Lords; the same body that passed the Act as the legislative House of Lords. Instead judicial review occurred through the High Court of Parliament requiring the executive power to purport to act ultimately through that forum, to validate its ‘Acts’.
Dicey said of statutes that, ‘being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament’. But otherwise he neglected the curiality of the High Court of Parliament. This view fails to accommodate the sovereignty of Parliament in 1688. It also fails to accommodate an element of that sovereignty, the need for judicial independence from the executive power, upon legislators instituting themselves as the parliamentary executive through responsible government in 1832. Whereas the rule of law as established by the Revolutionary sovereignty of Parliament asserted judicial independence from the executive power, that is no longer the case under legislative supremacy as articulated by Dicey. His reduction of the sovereignty of the High Court of Parliament, to legislative supremacy, is inferior to the model proposed in this post, because his model did not ‘get in’ judicial independence. We shall see that his legislative supremacy also fails to accommodate Jackson.
The second possible objection to the view proposed in this post also relates to the O’Connell separation of the supreme court from the legislature. It is arguable that it undid the parliamentary character of the supreme court, and hence the Revolutionary curiality of Parliament to independently validate and authorise executive power. However, s.4 of the Appellate Jurisdiction Act 1876 referred to the judicial House of Lords as ‘Her Majesty in Her Court of Parliament’, a term Lord Bingham used as late as 2002. This indicates that the parliamentary character of the supreme court endured, at least until its repeal by the Constitutional Reform Act 2005, discussed shortly. But if it endured there have been few occasions since O’Connell when the supreme court could have acted separately from the political branches, to demonstrate that Revolutionary capacity to validate and authorise the executive power, independently of legislators who now generate the executive power themselves as the parliamentary executive. Arguably, review of legislation under the European Communities Act 1972 gave the supreme court such a chance, but in such cases it could be said that the court was merely acting under the authority of the legislature.
For this reason Jackson is Revolutionary. The reader will recall that the Blair Government sought to restrict hunting, and used the Parliament Act 1911 to by-pass the legislative House of Lords when enacting the Hunting Act 2004. Doubts as to validity continued to attend the new Act, despite it gaining Her Majesty’s assent. Unlike the judgments on European legislation, the need for an independent stamp of authority on the 2004 enactment precluded the supreme court from purporting to act on behalf of the legislature. Lord Bingham identified ‘Parliament’ with the legislature alone, and observed:
The appellants have raised a question of law which cannot, as such, be resolved by Parliament. But it would not be satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety .
The Attorney General’s acquiescence in the appeal  to the judicial House of Lords, and the judgment itself, revealed that as in 1688 the executive power today is not ultimately validated by its own assertions of its authority; whether the parliamentary executive in the legislature enacting legislation proposed by the same executive power, or the royal assent of the monarchical executive. Instead executive power is lawfully validated and authorised when it is required to act through an autonomous forum, the High Court of Parliament, a supreme court and legislature. When the UK supreme court reviewed and authorised the Hunting Act 2004 in Jackson, judicial review was differentiated from political forms of review of executive power, and the former was shown to be more independent, and therefore more authoritative. In Jackson, as at the Glorious Revolution, the High Court of Parliament exercised the sovereignty of Parliament to independently validate and authorise executive power. The O’Connell separation of the supreme court from the legislature furthered the judicial independence founding that sovereignty, rather than impeding or even undoing it.
It is convenient to consider the third possible objection to the view proposed in this post, in terms of recent commentary on Privacy International. Section 1 of the Constitutional Reform Act 2005 perpetuated the rule of law as it existed on 24 March 2005, just before Jackson was handed down on 13 October 2005. Mike Gordon describes Lord Steyn, Lord Hope and Baroness Hale as overtly speculating in Jackson about ‘the possible existence of common law limits on parliamentary sovereignty’. Professor Gordon proceeds to use that speculation as a vantage point for viewing the Supreme Court’s recent treatment of ouster clauses in Privacy International. The Court addressed a question about s.68(7) of the Regulation of Investigatory Powers Act 2000, partly in terms of whether Parliament can legally oust review of decisions by a body such as the Investigatory Powers Tribunal. A 4-3 majority of the Supreme Court rejected a statutory provision that ramped up the language of another ouster clause, rejected in Anisminic v Foreign Compensation Commission by the UK supreme court half a century earlier. Gordon says that ‘(t)o 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  is necessarily to reject parliamentary sovereignty, which functions to establish exactly the opposite state of affairs’.
In 1688 the executive power personally wielded an ‘ouster clause’. James II claimed that his extra-parliamentary prerogative was superior to his prerogative inside the High Court of Parliament, a supreme court and legislature, such that he could suspend the effect of legislation against Catholics. Parliamentarians defeated that claim by subjecting executive power to the sovereignty of Parliament, through the Glorious Revolution and subsequent legislation such as the Bill of Rights. The claim of the parliamentary executive to wield ouster clauses today similarly seeks to oust the jurisdiction of independent courts, despite Jackson confirming the capacity of the supreme court to independently validate and authorise executive power. The supreme court’s validation and authorisation of the Hunting Act 2004, after the Constitutional Reform Act 2005 gained assent, demonstrates its enduring membership of the High Court of Parliament, its continuing participation in the sovereignty of Parliament, and judicial independence from executive power. The institution of legislative supremacy by responsible government, the O’Connell separation of the supreme court, and the perpetuation of the rule of law by the Constitutional Reform Act articulate the need for judicial independence from executive power, as a feature of the sovereignty of the High Court of Parliament. The Supreme Court must continue to participate in the sovereignty of Parliament, by independently reviewing ouster clauses as in Privacy International.
I am grateful to Alison Young and Melissa Naylor for their very helpful comments on this post.
Tom Spencer, Sessional Academic, University of Queensland
(Suggested citation: T. Spencer, The Sovereignty of Parliament, the High Court of Parliament, and Privacy International’, U.K. Const. L. Blog (18th Jul. 2019) (available at https://ukconstitutionallaw.org/))