Do our Supreme Court judges have too much power?

In our tradition, courts do not and should not stand in judgment over parliament. It is for parliament, in conversation with the people, to choose what the law should be and the duty of courts is to uphold those choices. In the years before the UK decided to leave the EU, some judges reasoned that the constitution had evolved to the point where parliamentary sovereignty was redundant. They suggested it was time for judges to assert a power to quash laws they thought were unjust or unprincipled. Their view was always legal nonsense, and it is very unlikely that a British court will attempt to strike down a statute anytime soon. However, even if our judges are, thankfully, less mighty than their North American or continental European counterparts, the expansion and misuse of judicial power still puts the balance of the constitution in doubt. Two cases to be decided by the Supreme Court later today illustrate the problem.

The first, R (Privacy International) v Investigatory Powers Tribunal, concerns a challenge to an ouster clause, which protects the decisions of a public body from being quashed by way of judicial review. The case began when the charity Privacy International complained to the Investigatory Powers Tribunal (IPT) – a judicial body which considers complaints against the intelligence agencies – that GCHQ had undertaken unlawful computer hacking. Privacy International later commenced judicial review proceedings to challenge the IPT’s decision about its complaint. The Divisional Court ruled that Section 67(8) of the Regulation of Investigatory Powers Act 2000 (RIPA) was a bar to the proceedings, and the Court of Appeal agreed.

This might seem an easy case. The IPT has made a decision, Privacy International is seeking to question that decision in court, by way of judicial review proceedings, and the statute says that this cannot happen. However, there is a strong risk that the Supreme Court will today render the ouster clause irrelevant in practice. Common law courts are often sceptical about ouster clauses and have been willing in the past to read them in surprising and implausible ways. But the drafters of RIPA, and of the statutes on which it is based, had clearly read those judgments and drafted their ouster clause with care. This is why Section 67(8) refers to decisions about whether the Tribunal has jurisdiction:

“'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.'

In a powerful judgment for the Court of Appeal, Lord Justice Sales, as he then was, noted this choice of language, as well as the particular context in which the IPT operates, and concluded, quite rightly, that parliament meant what it said – one cannot challenge the IPT’s decisions.

It is not obvious what the Supreme Court will decide later today. Many of the seven judges on the panel will be strongly tempted to frustrate the ouster clause, reasoning that otherwise the rule of law will be in peril. Such reasoning would be dubious in two ways. First, the IPT is clearly not a threat to the rule of law. It is more or less a court (its president is Lord Justice Singh) and it considers complaints rather than itself exercising executive power. Second, the rule of law requires judges, just as much as anyone else, to follow the law, which includes section 67(8). It would be sophistry – and bad law – to say that the statute only means what the court says it means. On the contrary, the Supreme Court’s duty is to give effect to parliament’s lawmaking choice. It is no good to rationalise misinterpretation on the grounds that parliament may always re-enact the clause again if it truly wishes.

The second case, R (DA) v Secretary of State for Work and Pensions, is rather different. It concerns a challenge, by way of the Human Rights Act 1998, to the secondary legislation giving effect to the government’s benefit cap policy. The question for the court is whether the regulations, introduced by the government and approved by parliament, breach the Article 14 human right to be free from discrimination, by failing to make special provision for parents (mothers) of children aged two and under. The challenge succeeded in the High Court but failed, by majority, in the Court of Appeal. The judges in the Court of Appeal disagreed about how to evaluate the evidence, and also about how to understand an earlier judgment of the Supreme Court, in which a version of the present policy narrowly survived a similar challenge.

The panel of judges in the Supreme Court which rules later today includes all five judges from the earlier judgment, as well as Lord Wilson and Lord Hodge. The outcome of the case will turn on the standard of review they choose to impose, on whether they take the rights of the child in international law to be relevant, and, in the end, on their confidence in evaluating the merits of a controversial social policy. Whatever its outcome, this litigation forms part of a wider trend of taking before the courts arguments that have failed in the political arena. These are not questions that courts are well placed to answer. If the Supreme Court allows the appeal and quashes the regulations, which is entirely possible, this will put political pressure on the political authorities not to reinstate a policy which the Court will have denounced as a violation of human rights.

So while it is true and important that UK judges cannot strike down legislation, and that parliament is free to overrule judgments, there is a problem with judicial power in this country. The risk that the Supreme Court may undermine a statute that limits its powers and the prospect that it may quash a major social policy on political grounds confirms that there is a problem. Parliament can and should act in response, taking note of and legislating to reverse misinterpretation of its enactments, asserting its continuing responsibility for deciding what the law should be, and ending or limiting the court’s jurisdiction to entertain political challenges to the merits of law or policy. If parliament does not act, the courts should not, but might well, take this to be acquiescence.

UPDATE: 7pm

The Supreme Court’s judgment this morning, in Privacy International v Investigatory Powers Tribunal, is very significant.  Allowing the appeal, the Supreme Court has narrowly interpreted the ouster clause in section 67(8) of the Regulation of Investigatory Powers Act 2000, such that it does not prevent judicial review of decisions of the Investigatory Powers Tribunal (IPT).  The judgment was a close run thing.  Four judges allowed the appeal (Lord Carnwath, with whom Lady Hale and Lord Kerr agreed; and Lord Lloyd-Jones); three would have dismissed it (Lord Sumption, Lord Reed and Lord Wilson).  Writing in advance of the judgment, I anticipated that a majority might misinterpret section 67(8); I did not anticipate that three of the judges would revive assertions about a judicial power, in extremis, to strike down statutes.

It is well settled that courts should presume that Parliament does not intend to oust the jurisdiction of the courts.  Sometimes the presumption has been stretched to breaking point, resulting in highly implausible interpretations being foisted on ouster clauses in order to limit their application and to make them unworkable. Famously, in Anisminic, the House of Lords sidestepped an ouster clause by ruling that a “determination” by the Foreign Compensation Commission was mistaken, and was therefore only a purported determination, which the ouster clause did not protect.  However, the drafters of the 2000 Act, and of the statutes on which it is based, had clearly read Anisminic and drafted their ouster clause more tightly.  This is why the section refers to decisions as to whether the Tribunal has jurisdiction.

The majority judgments largely gloss over the detail of the statutory text, the structure of the statutory scheme, and the concerns about national security that might help explain why Parliament enacted section 67(8).  The three dissenting judges point this out in detail.  When Parliament sets up a specialist tribunal – staffed by judges and distinguished lawyers – in a context where the security of proceedings is thought to be vitally important, then there is a very serious argument that the interpretive presumption has been beaten back and Parliament does indeed intend to limit judicial review.  However, this is not the first time that an ouster clause has been misinterpreted and one can imagine ouster clauses that are drafted more tightly still, which would make misinterpretation harder to rationalise.  What is most striking about today’s judgment is not how the majority interprets this section but the assertion by three judges in the first majority judgment that it is for the courts to decide whether to uphold ouster clauses.

The assertion is made out in response to counsel’s invitation to the Supreme Court to consider whether Parliament may by statute oust the High Court’s jurisdiction to quash decisions of inferior courts or tribunals of limited statutory jurisdiction.  Lord Carnwath says, at paragraph 144:

““In conclusion on the second issue, although it is not necessary to decide the point, 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.” (emphasis added)

This is not the law of our constitution.  The remarks chime with the unorthodox assertions made by Lord Steyn and Lord Hope in Jackson v Attorney General in 2005, assertions which the late Lord Bingham criticised trenchantly as inconsistent with the fundamentals of our constitutional law and history.  It is not for courts to decide whether to uphold Parliament’s authoritative choice, nor is it for them to design a regime of judicial supervision of other public bodies that flouts such authoritative choices.

Lord Carnwath seems to share the premise of the controversial assertions in Jackson, namely that the rule of law has somehow become the foundation of our constitutional law, such that courts are now free to invalidate Acts of Parliament which they take to flout the rule of law – and this is precisely what it would be openly to refuse, regardless of the words used, to give binding effect to a statutory provision.  This approach would introduce a highly uncertain new criterion of legal validity into our system.  It would also depart from centuries of settled constitutional law and practice, including the bracing judicial affirmation of the doctrine of parliamentary sovereignty in the recent Article 50 litigation.  (I note in passing that repeal of the European Communities Act 1972 is something of a blow to the narrative that parliamentary sovereignty has been overtaken by constitutional developments.)

No court in this country has authority to choose not to uphold a statutory provision, including a provision ousting the jurisdiction of the courts.  The doctrine of parliamentary sovereignty establishes the validity of all Acts of Parliament and disables the courts from invalidating them.  This is fundamental, ancient constitutional law.  Any judge who openly refused to give effect to an Act of Parliament would be liable to be removed from office by way of the procedure set out in the Senior Courts Act 1981, which itself dates back to the Act of Settlement 1701.  Whether this would be a prudent course of action in any particular case would be a question of fine judgment – it is a very good thing that our judges are almost never removed from office and there should be, and is, a strong presumption against initiating the statutory process.  However, removal for openly flouting parliamentary sovereignty would be no violation of judicial independence.  The security of tenure judges rightfully enjoy is a protection to enable them to adjudicate disputes without fear or favour according to the laws and usages of the realm, as their oath puts it.  It is not a protection to enable them openly to defy or overturn fundamental constitutional law.

Richard Ekins is head of Policy Exchange’s Judicial Power Project and associate professor at the University of Oxford