#19893 - Privacy International - Constitutional Law

Privacy International

The ouster clause read “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.” The Tribunal had made a decision which a party wanted to appeal. The appellant somehow got permission to seek judicial review, but the High Court determined it didn’t have jurisdiction because of the ouster clause. Interestingly, this doesn’t seem to be a re-hashing of Anisminic because the Divisional and Court of Appeal reached a different conclusion to UKSC.

What did the Divisional Court say?

Sir Brian Leveson P:

Considered Anisminic. In that case, the ouster clause was ‘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”. HL said ‘determination’ meant real determination, not purported (i.e. error of law) determination.

It is not impossible for Parliament to legislate to exclude review. In Anisminic, Lord Wilberforce said ‘the position may be reached’, but was incredibly vague and didn’t say how. Denning LJ in Gilmore said ‘clear and explicit words’ would do it. In Hull University Visitor, ex p Page, Lord Griffiths said ‘appropriate language’ would do it. This might suggest if the Anisminic ouster clause had used added ‘purported determination’ it would have worked, but is this true?

In Simms, Lord Hoffmann said the principle of legality means Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. But is this applicable to JR? If Parliament squarely confronts the issue – by using very clear language – will the courts enforce it or disobey? The 2003 Asylum Bill got close, but political constitutionalism ensured the legal wasn’t pushed to the extreme.

Concluded, on a literal reading of the statute, the court was ousted.

Court of Appeal?

Sales LJ

‘Courts adopt a highly restrictive approach to the interpretation of statutory provisions which purport to oust the jurisdiction of the High Court’ – common law presumption against ousters. If an individual cannot get before a court or tribunal to determine a complaint that a public authority has engaged in unlawful conduct, the rule of law will be defeated.

In Cart, Hale said in Anisminic the HL effectively removed the distinction error of law and excess of jurisdiction. Differentiates between ‘decisions’, used in this ouster clause, and ‘determinations’, used in the Anisminic ouster. Says we can’t read purported into ‘decisions’ and goes into Draftsman language etc. It’s worth noting Leggatt J disagreed with him on this point in the High Court, but ultimately Leggatt J would have upheld the ouster. Thinks this is purely a case of statutory interpretation, makes little reference to the constitutional significance.

Robert Craig on CA

Craig thinks the UKSC should (writing before the UKSC decision) uphold CA. Thinks Parliament has sufficiently indicated it does not want the courts to review the Tribunal’s decisions.

Tom Hickman

If you free the Tribunal from supervision, you make it sovereign. In Anisminic, Lord Reid said it is well established that if an ouster is reasonably capable of having two meanings, the meaning that preserves the ordinary jurisdiction of the court will be taken. Hickman wants to argue that the ouster reasonably has another meaning. Also focuses on the constitutional significance, but you can’t argue both that the ouster can reasonably read out of existence and the ouster shouldn’t apply because of RL requirements. I suppose you can, actually. Separation of powers issue – this is a court Parliament has created (so is the UKSC…) so isn’t properly a judicial court of law. The statutory construction stuff’s boring and technical. Could argue it doesn’t actually matter whether the statute can be read out of existence, the point is the judges wouldn’t apply this method to, say, a statute saying the decisions of the jedi council as to who gets to sit on the council are not subject to the supervision of the High Court. Hickman makes the argument that once you interpret the statute to conform with the constitution (RL), the constitution has been upheld. What’s the justification, upholding the RL, or normal statutory interpretation? Why bother with the semantics at all, and just disapply the statute? Because the courts don’t want to start a constitutional war?

The Supreme Court

Issues:

1. Did the ouster clause work where the Tribunal had made a judgement in error of law?

2. If not, what does Parliament have to do to oust the court.

(1)

The majority (they let Carnwath give the judgement). The respondents tried to argue there was nothing constitutionally offensive about Parliament reallocating the High Court’s judicial review jurisdiction to a body both independent of the executive and capable of providing an authoritative interpretation of the law. In short, Parliament can create more courts if it wants and exclude them from...