1 00:00:09,870 --> 00:00:17,910 OK. Good afternoon, everyone, and welcome to the third and final panel today of law and politics in three courts. 2 00:00:17,910 --> 00:00:25,420 We're coming home to the jurisdiction that we're in, though, with the case of Privacy International and Investigatory Powers Tribunal. 3 00:00:25,420 --> 00:00:34,710 This is a recent decision in which the UK Supreme Court had to confront a longstanding problem in our own codified constitution. 4 00:00:34,710 --> 00:00:37,350 The extent to which Parliament can, 5 00:00:37,350 --> 00:00:48,330 by way of primary legislation outside the jurisdiction of the high courts to conduct judicial review of administrative bodies or inferior tribunals. 6 00:00:48,330 --> 00:00:53,970 We have three distinguished speakers here today Professor Richard Eakins from the University of Oxford. 7 00:00:53,970 --> 00:01:02,010 Professor Jeff King from University College London. And Helen Montville, QC of Mansfield College on the bar. 8 00:01:02,010 --> 00:01:08,310 So we couldn't be any luckier. We really do have some experts. I'm going to be quiet very, very shortly. 9 00:01:08,310 --> 00:01:13,620 We've asked each of the speakers to speak for no more than 20 minutes because we have to leave this lecture 10 00:01:13,620 --> 00:01:20,370 theatre after a certain time to allow for Mansfield College to carry on with a prestigious lecture this evening. 11 00:01:20,370 --> 00:01:27,420 I'll give you a small amount of context the case for those of you who have read the decision or not from this jurisdiction. 12 00:01:27,420 --> 00:01:34,200 The main dispute arose when Privacy International sought judicial review before the Investigatory Powers Tribunal, 13 00:01:34,200 --> 00:01:40,890 a specialist security tribunal tasked with overseeing surveillance complaints against various public bodies, 14 00:01:40,890 --> 00:01:45,630 including local authorities, the police, other intelligence services, 15 00:01:45,630 --> 00:01:56,040 as to the legality of using Section five five of the Intelligence Services Act to issue a bulk warrant for mass computer hacking. 16 00:01:56,040 --> 00:02:00,600 So the Investigatory Powers Tribunal that said this was indeed lawful. 17 00:02:00,600 --> 00:02:05,370 Privacy International was the softest point and sought judicial review in the High Court. 18 00:02:05,370 --> 00:02:11,910 The High Court said, unfortunately, that the ouster clause and the Regulation of Investigatory Powers Act, 19 00:02:11,910 --> 00:02:18,060 which reads as you can see on the screen except to such extent as the Secretary of State, 20 00:02:18,060 --> 00:02:25,830 may by order otherwise provides determinations, awards orders and other decisions of the Tribunal, 21 00:02:25,830 --> 00:02:36,300 including decisions as to whether they have jurisdiction, shall not be subject to appeal or be liable to be questions and any court of law. 22 00:02:36,300 --> 00:02:46,170 And the hearing before the Court of Appeal Court of Appeal found for the government and that the use, of course, was valid and fully insulated. 23 00:02:46,170 --> 00:02:50,520 The Tribunal from judicial review by the time we made it to the Supreme Court. 24 00:02:50,520 --> 00:03:00,240 The majority found that the clause was not wholly effective and could not entirely insulate the tribunal from the jurisdiction of the High Courts. 25 00:03:00,240 --> 00:03:05,040 I am going to end my comments here. I turn you over to the panellists, professor. 26 00:03:05,040 --> 00:03:13,200 You can just first thank you. Thank you, Haley. It's a pleasure to be here to speak to you about this case. 27 00:03:13,200 --> 00:03:18,420 So we do have free. How can you see better? We have the provision up here behind us. 28 00:03:18,420 --> 00:03:21,750 It's worth adding that there was a tiny subsection. 29 00:03:21,750 --> 00:03:29,100 Subsection nine imposed a duty on the secretary of State to bring into force and to maintain an order 30 00:03:29,100 --> 00:03:35,700 allowing for an appeal in relation to certain types of decision of the Investigatory Powers Tribunal. 31 00:03:35,700 --> 00:03:42,120 That provision was never brought into force because it was for the Secretary of State to decide on the commencement of the provisions, 32 00:03:42,120 --> 00:03:46,230 and it does seem to be something of an omission in legislative craft. 33 00:03:46,230 --> 00:03:51,030 One could imagine that would be more sensible to bundle these provisions together or Section 67, 34 00:03:51,030 --> 00:03:53,970 or that might have been more difficult than I imagined. 35 00:03:53,970 --> 00:04:00,090 And these are the subsection requiring an appeal introduced and making provision for how it should 36 00:04:00,090 --> 00:04:06,300 be tabled before Parliament and consultation all swept away by a new section section 67 eight, 37 00:04:06,300 --> 00:04:09,930 which brings into force appeals on questions of law. 38 00:04:09,930 --> 00:04:12,270 But that section post states. 39 00:04:12,270 --> 00:04:19,140 This is the beginning of these proceedings, and so it does not apply to the two questions for the Supreme Court to decide. 40 00:04:19,140 --> 00:04:24,030 One was the question to which Hayley referred, namely, does the Santa Clause work? 41 00:04:24,030 --> 00:04:32,270 Does it have the effect of ousting the supervisory jurisdiction of the High Court to quash a judgement of the Tribunal on grounds of error of law? 42 00:04:32,270 --> 00:04:37,920 Second question, which is best I can tell, was only raised in the speech before the Supreme Court. 43 00:04:37,920 --> 00:04:44,400 And this is the question whether and if so on what principles may parliament by statute allows the supervisory 44 00:04:44,400 --> 00:04:51,590 jurisdiction of the High Court to quash a decision of an inferior court or tribunal with limited statutory jurisdiction? 45 00:04:51,590 --> 00:04:59,930 And Lord Sumption with Lord Reid and agreements in the minority dissenting refer to that second question as an exam question. 46 00:04:59,930 --> 00:05:05,660 And you can see what they mean, and it probably will be an exemption officer if it hasn't been already. 47 00:05:05,660 --> 00:05:09,620 It looks me as though the point of that question has to be to ask whether, 48 00:05:09,620 --> 00:05:18,500 even if the effect of section 67 subsection eight is to house jurisdiction, whether that section is lawful, whether it's effective in our law. 49 00:05:18,500 --> 00:05:23,420 And that seems to me to be a very surprising question to pose. 50 00:05:23,420 --> 00:05:30,950 These deposed to court in this jurisdiction, the Supreme Court justices understand the question in slightly different ways, I think. 51 00:05:30,950 --> 00:05:33,200 And I'm open to correction is how it should have been understood. 52 00:05:33,200 --> 00:05:42,230 For my part, I find it hard to see how it can not be understood as a question about whether Parliament has the authority to oust jurisdiction. 53 00:05:42,230 --> 00:05:47,600 And that's a surprising question, as I say, because I think parliamentary sovereignty provides the answer, 54 00:05:47,600 --> 00:05:55,610 but I'll come back to that question shortly. So Haley referred to the proceedings below, and I think they really do repay attention. 55 00:05:55,610 --> 00:05:56,600 Both divisional courts. 56 00:05:56,600 --> 00:06:04,850 We have an interesting disagreement between Sir Brian Leveson and Mr Justice Leaguers, who will soon be Lord Liggett's of the Supreme Court. 57 00:06:04,850 --> 00:06:08,270 And Mr Justice Liggett's cause. 58 00:06:08,270 --> 00:06:13,070 I dissent if you like, because it sets out the reasons why he's not persuaded that the articles works, 59 00:06:13,070 --> 00:06:18,350 although he's willing to go along with the judgement in order to get the appeal moving, which I think is perfectly proper. 60 00:06:18,350 --> 00:06:23,660 Mr Justice League, it's reasoning, is intricate and impressive. 61 00:06:23,660 --> 00:06:31,820 I think I didn't agree with this, but it did make me pause, slow down and response to the strong presumption that is, 62 00:06:31,820 --> 00:06:35,390 of course, there in our system and in most other common law systems. 63 00:06:35,390 --> 00:06:36,830 To my knowledge, 64 00:06:36,830 --> 00:06:44,450 the presumption that Parliament does not intend to oust judicial review and should be the court should be slow to understand it to have done so. 65 00:06:44,450 --> 00:06:49,970 And Mr Justice Liggett's reasoning takes very seriously the difference between this 66 00:06:49,970 --> 00:06:54,950 obstacles and the obstacles that was in dispute in the famous and his medical judgement. 67 00:06:54,950 --> 00:06:59,930 And he thinks with some care about the significance or not of the Secretary of State's power to make 68 00:06:59,930 --> 00:07:06,050 provision for appeals and about Parliament's subsequent decision to to allow an appeal on questions of law, 69 00:07:06,050 --> 00:07:11,120 which he thinks demonstrates parliament's view that there is no policy reason against such appeals. 70 00:07:11,120 --> 00:07:13,880 Now, I'm not persuaded by that party analysis myself. 71 00:07:13,880 --> 00:07:20,930 I think it slips a little from a proper focus on Parliament's reasoning in enacting the subsection in the first place, 72 00:07:20,930 --> 00:07:26,090 and it did make me wonder about the section's effectiveness or its ineffectiveness. 73 00:07:26,090 --> 00:07:34,070 And ousting other grounds of judicial review, especially with those grounds, might involve disclosure of facts relevant to national security, 74 00:07:34,070 --> 00:07:44,180 which I think the structure of the Tribunal is partly intended to avoid disclosing Court of Appeal level, which is referred to as Lord Justice Sales. 75 00:07:44,180 --> 00:07:48,380 Who's now Lord sales of the Supreme Court moving around. 76 00:07:48,380 --> 00:07:57,410 He gave the judgement of the court upholding the reason below, and this judgement is very well crafted. 77 00:07:57,410 --> 00:08:06,950 Recognising the presumption of that, our schools should be read very strictly, saying this is an instant instance of the principle of legality. 78 00:08:06,950 --> 00:08:09,050 But concluding that just like every other provision, 79 00:08:09,050 --> 00:08:17,900 you read a subsection like this by taking very seriously its language and the context of enactment in order to infer what parliament intended. 80 00:08:17,900 --> 00:08:27,230 And he thinks what parliament was to exclude judicial review of decisions of the of the Tribunal, including decisions that could be quashed otherwise. 81 00:08:27,230 --> 00:08:30,680 And he makes a great deal of the structure of the Act's membership of the Tribunal. 82 00:08:30,680 --> 00:08:37,370 Risks to national security of proceedings are conducted in other forms, and it's not denying that, he says outright. 83 00:08:37,370 --> 00:08:44,840 There is a rule of law cost to a provision like this. He thinks the cost is moderate compared to the context of other ouster clauses. 84 00:08:44,840 --> 00:08:48,230 And I think most importantly, although maybe doesn't spell this out, 85 00:08:48,230 --> 00:08:54,690 whether that is a cost worth paying is for Parliament to decide, and he thinks it did decide. 86 00:08:54,690 --> 00:09:03,940 Supreme Court, we have four different judgements, as I recall, four judges of the seven agreeing that's the subsection doesn't work, 87 00:09:03,940 --> 00:09:08,310 it doesn't oust jurisdiction, I say doesn't work methods to question me. 88 00:09:08,310 --> 00:09:12,750 It doesn't oust the jurisdiction of the High Court on the grounds of error of law. 89 00:09:12,750 --> 00:09:17,480 And three of those four addressed the second question. 90 00:09:17,480 --> 00:09:22,890 And it's little complex judgement with whom Lady Hale and Booker agree. 91 00:09:22,890 --> 00:09:27,330 And she makes clear that this is not necessary strictly to address that question. 92 00:09:27,330 --> 00:09:30,720 That's what we hear he's going to provide. 93 00:09:30,720 --> 00:09:38,010 I've an answer, but not a conclusive answer, because it's not strictly necessary, but a strong indication of how he thinks it should be answered. 94 00:09:38,010 --> 00:09:45,360 And Lord Lloyd-Jones agrees with the with Luke Thomas and Co. on first question that doesn't doesn't go off the second. 95 00:09:45,360 --> 00:09:53,340 And I want to focus on a little complex judgement because I think it's the main act like and I think it is quite revealing about common law technique. 96 00:09:53,340 --> 00:09:59,160 They start trying to think about how the common law works. And I found it stimulating in that regard. 97 00:09:59,160 --> 00:10:04,740 Both how common lawyers articulates, recognise developed principles over time, 98 00:10:04,740 --> 00:10:09,690 develop lines of case law and maybe especially how they understand and receive statutes 99 00:10:09,690 --> 00:10:15,540 and place of Parliament's authority to enact statutes in relation to the common law. 100 00:10:15,540 --> 00:10:20,670 Now, so the great delight of many academics, I'm sure, especially those societies, it's a highly academic judgement, 101 00:10:20,670 --> 00:10:26,070 much engagement with academic literature, a great reflection on on the relevant authorities. 102 00:10:26,070 --> 00:10:31,710 And the main body of the judgement really is a tour through those authorities tracing the working out of principle, 103 00:10:31,710 --> 00:10:35,650 especially the principle of the rule of law and that principle. 104 00:10:35,650 --> 00:10:44,210 And to some extent, those authorities, although they dropped away in the end, I think that they brought to bear on the two questions before the court. 105 00:10:44,210 --> 00:10:50,550 So what does she want to learn from the tour? Well, I think we should discern that something which is clearly true, 106 00:10:50,550 --> 00:10:57,650 there's a very strong tradition of judicial hostility to or scepticism about our laws as they are read narrowly. 107 00:10:57,650 --> 00:11:03,470 And it's true. I think it's worth noting, though, or at least struck me as something worth thinking about that in that tradition, 108 00:11:03,470 --> 00:11:05,600 which is this long and well-established, 109 00:11:05,600 --> 00:11:11,210 not all errors of law across that time and in that tradition have been reviewable the modern English position, 110 00:11:11,210 --> 00:11:16,850 which we now have effectively all areas of law reviewable that comes pretty late in the piece. 111 00:11:16,850 --> 00:11:21,950 So an ouster clause that restored the protected and in theory of what is right to 112 00:11:21,950 --> 00:11:28,160 make some errors of of law might be consistent with that tradition over time, 113 00:11:28,160 --> 00:11:35,240 even if it's pretty hard to articulate where the space for error of law would be, what the jurisdiction of the authority is, 114 00:11:35,240 --> 00:11:41,000 extensive discussion of the famous and as being a judgement as you might expect, rightly stressing, 115 00:11:41,000 --> 00:11:49,820 I think how much of an as ex force turns not on what was decided in the case, but how the case is picked up and received by subsequent judges. 116 00:11:49,820 --> 00:11:53,900 And there's a lovely discussion of the judgement of Stephen Said work, 117 00:11:53,900 --> 00:12:01,700 which I wasn't aware of about how important it was that Treasury counsel who the leading government lawyers and argued for the superior courts, 118 00:12:01,700 --> 00:12:09,960 how Treasury counsel received and understood the judgement, and that being quite significant in forming forming the common law. 119 00:12:09,960 --> 00:12:17,210 Now, having said that, insofar as this support is a response to the judgement and as many as many of the judges have 120 00:12:17,210 --> 00:12:23,180 thought and response in particular to how those judges avoided the obstacles in the A.M.E. case, 121 00:12:23,180 --> 00:12:27,470 it would seem you do need to focus pretty strictly on how the court reasoned in that case, 122 00:12:27,470 --> 00:12:33,740 rather than on the law that arose in consequence on on the judgement look come with 123 00:12:33,740 --> 00:12:39,980 makes a great deal of the Supreme Court's judgement cut out a few years back now. 124 00:12:39,980 --> 00:12:45,770 And I think it's a little comfort in a way. Privacy International is the logical extension of cars, 125 00:12:45,770 --> 00:12:51,140 and his judgement partly involves the defence of of the reasoning that that went on in that case, 126 00:12:51,140 --> 00:13:01,580 a defence against academic criticism that it was really a victory for judicial pragmatism over principle to decide for itself what's the 127 00:13:01,580 --> 00:13:08,690 balance of judicial review should be they they designed an optimal system of review when really there should be the business of designing it, 128 00:13:08,690 --> 00:13:16,180 they should have look at one case from next in accordance with principles that are justified and require a certain outcome. 129 00:13:16,180 --> 00:13:24,640 Strikingly, at least to my mind, and Luke Thomas makes a great deal of the significance of section one of the Constitutional Reform Act 2005. 130 00:13:24,640 --> 00:13:29,960 And that's the act that brings into existence the Supreme Court, which transfers the jurisdiction of that committee, 131 00:13:29,960 --> 00:13:33,820 the House of Lords to the Supreme Court and section one, I think is pretty old. 132 00:13:33,820 --> 00:13:41,650 Section myself provides that nothing in the act detracts from the existing constitutional principle of the rule of law. 133 00:13:41,650 --> 00:13:48,700 Now, as I said, I think it's an odd provision qualifies the rest of the act in a fairly unfair way, not entirely consistent with the rule of law. 134 00:13:48,700 --> 00:13:53,500 To my mind, Drew recognises the rule of law as a constitutional principle. 135 00:13:53,500 --> 00:13:58,270 I think it is is something of a reach to leverage that recognition of that qualification. 136 00:13:58,270 --> 00:14:03,520 Savings pools, if you like, into a wider ground of legal action, especially since, 137 00:14:03,520 --> 00:14:08,530 as I read the section, it is focussed on the effect of the 2005 act itself. 138 00:14:08,530 --> 00:14:14,900 But little comma certainly seems to have a wide understanding of the significance of that provision in mind. 139 00:14:14,900 --> 00:14:21,010 That it refers either to the Act or to that section as as our modern constitutional settlement. 140 00:14:21,010 --> 00:14:25,810 I went to look at how it handles the first question and then in the second. 141 00:14:25,810 --> 00:14:32,380 So in terms of how he interprets and understands the subsection, 142 00:14:32,380 --> 00:14:38,020 more or less rejects argument from legislative intent, I say more or less because it's not entirely clear. 143 00:14:38,020 --> 00:14:44,230 He rejects counsel for the governments and says that this effectively downplaying 144 00:14:44,230 --> 00:14:48,280 or discounting the tradition that you read ouster clauses in a different way. 145 00:14:48,280 --> 00:14:54,550 Although he then refers to parliaments and scapegoats, policy intention says that's not the not the be all and end all. 146 00:14:54,550 --> 00:14:56,950 It's not the decisive factor here. 147 00:14:56,950 --> 00:15:05,020 And I would agree insofar as the relevant intention is parliament's lawmaking intention, given the constitutional matters in play, 148 00:15:05,020 --> 00:15:12,810 given that there is a standing presumption against ouster of the High Court's supervisory jurisdiction. 149 00:15:12,810 --> 00:15:16,710 So and it maybe it's not entire rejection of legislative intent, 150 00:15:16,710 --> 00:15:25,080 because little time a thing does go on to try to find some meaning that he can attribute to the language and by extension to parliament. 151 00:15:25,080 --> 00:15:30,810 But I think it's an implication of the reasoning and not many paragraphs really the key part of the judgement. 152 00:15:30,810 --> 00:15:35,820 I think it's an implication of his reasoning that one can the court can legitimately adopt a meaning. 153 00:15:35,820 --> 00:15:44,910 The one is pretty confident parliament did not intend. But what you can foist on foot with in some way the language is a familiar refrain that 154 00:15:44,910 --> 00:15:50,820 the language is insufficiently clear to do what and what is being argued has been done. 155 00:15:50,820 --> 00:15:52,800 There's some discussion of religious obstruction, 156 00:15:52,800 --> 00:15:59,610 but that's pretty categorical dismissal of the relevance of the Supreme Court's power to create an appeal, 157 00:15:59,610 --> 00:16:06,090 and also of the security concerns about allowing judicial review proceedings more generally. 158 00:16:06,090 --> 00:16:11,400 Now it seems to me what matters here and the significance of the come reasoning is that he's not adopting 159 00:16:11,400 --> 00:16:17,280 the perspective of the parliament that enacted this provision in the way that Lord Justice sales did, 160 00:16:17,280 --> 00:16:18,780 for example. 161 00:16:18,780 --> 00:16:27,270 So whereas Lord Justice sales aimed to understand the law making decision to see how the context really did bear on what it was trying to do. 162 00:16:27,270 --> 00:16:34,110 Look how it isn't proceeding. Thus this thing, just the clarity of language, force me to accept that an outsider has taken place. 163 00:16:34,110 --> 00:16:38,850 And he concludes, No, it does not force me to reach that conclusion. 164 00:16:38,850 --> 00:16:46,140 But nonetheless, he goes on to answer the second question even if it were clear enough to force me to otherwise accept announced it. 165 00:16:46,140 --> 00:16:48,780 Does Parliament have that authority? 166 00:16:48,780 --> 00:16:56,470 Now it will come with nominally distinguishes this litigation, and this question will be more precise from the Jackson case. 167 00:16:56,470 --> 00:17:03,030 Some of you will know. Two thousand and five As I recall, House of Lords hearing a challenge to the Hunting Act, 168 00:17:03,030 --> 00:17:08,760 a challenge by way of reflection on the Parliament Act 1911 in nineteen forty nine. 169 00:17:08,760 --> 00:17:15,700 And one of the reasons that case is quite well known in this legal system is because it's how you count. 170 00:17:15,700 --> 00:17:22,980 But a number of judges, especially Goldstein and Lord Hope, make some startling remarks about parliamentary sovereignty, 171 00:17:22,980 --> 00:17:31,530 but how parliamentary sovereignty may no longer be the law or maybe being qualified by events overtaken Lord Hope as a ringing line 172 00:17:31,530 --> 00:17:38,280 about the rule of law being the new foundational line foundational ground of the Constitution qualifies parliamentary sovereignty. 173 00:17:38,280 --> 00:17:43,180 Now look how it doesn't quite say that, but it's the sort of question that's been put to them, 174 00:17:43,180 --> 00:17:47,340 which is going on to answer, and he takes it to be common to all the parties in the case. 175 00:17:47,340 --> 00:17:52,250 The rule of law is the fundamental proposition in the legal system. 176 00:17:52,250 --> 00:17:56,550 I'm not sure that really does capture what Sir James was arguing, but I haven't checked. 177 00:17:56,550 --> 00:18:02,370 So take it away from the judgement. And he's not saying either strictly that this that the rule of law is. 178 00:18:02,370 --> 00:18:05,520 Lord hopes it is superior to parliamentary sovereignty, 179 00:18:05,520 --> 00:18:15,840 but it does seem he thinks it's in some interesting tension with us in a way that limits Parliament's authority to some extent, as will become clear. 180 00:18:15,840 --> 00:18:20,640 Some discussion about whether it's logically impossible to exclude judicial review if you enact a limited body, 181 00:18:20,640 --> 00:18:25,710 doesn't that imply that there must be a superior court with capacity to enforce the limits? 182 00:18:25,710 --> 00:18:29,520 I think it's a mistake in. It's very interesting, logically of interesting but mistaken. 183 00:18:29,520 --> 00:18:35,250 You can't confer a limited duty without thereby empowering some other body to enforce the limits. 184 00:18:35,250 --> 00:18:42,300 But the direction of travel for the reasoning and the judgement is towards a strong assertion that 185 00:18:42,300 --> 00:18:48,000 it's for courts rather than for the Legislature to decide the limits of judicial review at large. 186 00:18:48,000 --> 00:18:54,450 In all cases, I think. And it seems to me this is a culmination of the cart type of reasoning in which the 187 00:18:54,450 --> 00:18:59,520 Supreme Court perceives itself to have a capacity to design an optimal review structure, 188 00:18:59,520 --> 00:19:07,320 with the Legislature not having a capacity to to displace or set aside the court's reasoning on point. 189 00:19:07,320 --> 00:19:15,990 And he makes again a great deal of the significance of section one of the Constitution reformatted to that end. 190 00:19:15,990 --> 00:19:21,420 Now, a few striking points nearly at the end of the resolution of Question two. 191 00:19:21,420 --> 00:19:25,620 He reasons that announced a clause that limited judicial review to the High Court, 192 00:19:25,620 --> 00:19:33,720 only that which did not allow for appeals and prohibited appeals to Court of Appeal and Supreme Court, that that might well be of no effect. 193 00:19:33,720 --> 00:19:37,860 And that is quite startling because presumably there would be no lack of clarity. 194 00:19:37,860 --> 00:19:44,100 You said maybe judicial review to the High Court, but they might not be no appeals to the higher the Court Appeal Supreme Court. 195 00:19:44,100 --> 00:19:53,310 He's holding that would not be a lawful enactment. And the final this is the sharp end of this argument is paragraph 144. 196 00:19:53,310 --> 00:19:56,550 I see a strong case for holding consistently with the rule of law, 197 00:19:56,550 --> 00:20:04,830 finding it cannot be given to a clause which purports wholly to exclude supervisory jurisdiction of the High Court, et cetera. 198 00:20:04,830 --> 00:20:07,080 In all cases, regardless of the words used, 199 00:20:07,080 --> 00:20:14,550 it should remain ultimately a matter for the court to determine the extent to which such a court should be upheld, et cetera, et cetera. 200 00:20:14,550 --> 00:20:22,500 Now that looks to me like the Jackson victor more narrowly cast, but perhaps more forcefully put by more judges too. 201 00:20:22,500 --> 00:20:29,070 And I think the mistake here is that runs pretty squarely into parliamentary sovereignty. 202 00:20:29,070 --> 00:20:33,000 Parliament has authority to make, law, has authority to change the court structure, 203 00:20:33,000 --> 00:20:37,290 has authority to limit the jurisdiction of the courts and to limit rights of appeal. 204 00:20:37,290 --> 00:20:43,320 And the earlier cases have held as much. Also held, you should be extremely slow to conclude that this is what's happened. 205 00:20:43,320 --> 00:20:51,150 I think that's broadly true. The surprise shouldn't shouldn't accept it lightly, and parliament's authority could well be use. 206 00:20:51,150 --> 00:20:57,180 Parliamentary sovereignty is open to abuse. You could use it to to undermine the rule of law. 207 00:20:57,180 --> 00:21:07,200 But that parliament has this vast lawmaking authority is part of our law, as our Supreme Court recognises often quite strong terms from time to time. 208 00:21:07,200 --> 00:21:12,930 And therefore, it's it's upheld partly by the rule of law itself requires respect. 209 00:21:12,930 --> 00:21:20,280 And of course, very often parliament's authority needs to be exercised in order to decide what the rule of law requires in some particular case. 210 00:21:20,280 --> 00:21:25,500 And that may be much more consistent with the rule of law than leaving this up to judicial argument, 211 00:21:25,500 --> 00:21:31,680 especially with that justice argument involves putting into doubt statutes that otherwise are good law. 212 00:21:31,680 --> 00:21:37,590 So this does seem to me to be a revolutionary judgement. Even if it's only a minority holding, it seems to be quite important. 213 00:21:37,590 --> 00:21:38,080 So if anything, 214 00:21:38,080 --> 00:21:44,730 sit on satanic is about law that if you want to touch your politics seems to be quite important that the judges could anticipate these three judges. 215 00:21:44,730 --> 00:21:52,980 That there would be no political or legislative response or at least very unlikely would be one because section 67 has already been enacted. 216 00:21:52,980 --> 00:21:59,790 And of course, they're not actually acting on the victor. They're simply propounding is ceding the caseload more possibilities. 217 00:21:59,790 --> 00:22:06,180 So in that way, I wonder if it is a distant or weak analogy to Marbury versus Madison. 218 00:22:06,180 --> 00:22:13,110 Now what to do about it is like you may you think it's mistaken, but the great deal turns on how it's received, how it's picked up, 219 00:22:13,110 --> 00:22:21,330 how the many judges who took a different view, how they respond, including both legitimacy, will be soon involved sales as he now is and others. 220 00:22:21,330 --> 00:22:29,190 And I think just to give us a sharp edge, the conclusion the discussion of its judges would act on that. 221 00:22:29,190 --> 00:22:34,200 So if they head squarely said this is an act of parliament that does oust the jurisdiction of our court, 222 00:22:34,200 --> 00:22:36,900 therefore lies beyond perhaps authority and is not act. 223 00:22:36,900 --> 00:22:44,910 There is no law that would have been a revolutionary act inconsistent with the fundamental constitutional law of this legal system. 224 00:22:44,910 --> 00:22:53,070 It would have been open to well to parliament to certainly to legislate to make clear that the judgement no seat two other judges 225 00:22:53,070 --> 00:22:59,970 to take this to be a revolutionary act rather than law for one and to parliament to take steps to remove those judges from office. 226 00:22:59,970 --> 00:23:07,080 Now, whether that be prudent or wise or with the right way to proceed, this is a delicate political question which would await further discussion. 227 00:23:07,080 --> 00:23:10,830 I hope we never get married again. We'll see. Stop it. 228 00:23:10,830 --> 00:23:14,940 Thank you. Thank you very much, Richard. Yes. 229 00:23:14,940 --> 00:23:18,180 We'd like to invite Helen to give her remarks. Thank you. 230 00:23:18,180 --> 00:23:24,660 Well, first of all, I'd like to apologise to you because two minutes into Richard's speech, I saw the programme in front of Jack, 231 00:23:24,660 --> 00:23:28,380 which said we were meant to start this session at a quarter to three and it was in my diary for three o'clock. 232 00:23:28,380 --> 00:23:32,090 So I'm very sorry and quite so late. 233 00:23:32,090 --> 00:23:36,090 It's a diary problem, not an unwillingness to be here. 234 00:23:36,090 --> 00:23:41,370 It's very interesting discussion, and it seems to me that the answer to that question, 235 00:23:41,370 --> 00:23:48,990 the overarching answer to that question is in exactly the same way as they should and operate in other areas, 236 00:23:48,990 --> 00:23:59,760 because that is what the rule of law is, that they don't either enter the political arena or decide that this is because it's a contested arena. 237 00:23:59,760 --> 00:24:06,180 We must not perform our job. I think it's very important that courts are seen as independent in both senses of that word 238 00:24:06,180 --> 00:24:11,670 that they neither shine a work shy away from issues because of the context nor enter the arena. 239 00:24:11,670 --> 00:24:15,660 And I was interested in the point that Richard picked up on. 240 00:24:15,660 --> 00:24:19,950 Stephen said his observation about the role of government lawyers, treasury counsel. 241 00:24:19,950 --> 00:24:32,190 Because. Clearly, in an unwritten constitution like the one in this country, the ongoing existence of a democracy governed by the rule of law, 242 00:24:32,190 --> 00:24:38,250 so both aspects of that really does depend on all constitutional actors 243 00:24:38,250 --> 00:24:42,300 continuing to have and participate in a shared understanding of how this works. 244 00:24:42,300 --> 00:24:48,750 And I think there's a bit of a crisis in this country now because people are picking up 245 00:24:48,750 --> 00:24:53,250 judgements with which they disagree and suggesting that there's no legitimacy to that, 246 00:24:53,250 --> 00:24:56,520 rather than disagreements about where the boundaries lie between the judges. 247 00:24:56,520 --> 00:25:03,420 And I think it's a matter of concern in what around the world and arguably here too, 248 00:25:03,420 --> 00:25:08,130 although to a lesser extent than in other places in the world, is a populist moment. 249 00:25:08,130 --> 00:25:16,950 So we agreed that I will go before Jeff because on these questions, I think Richard is very much the roundtable on the Cavalier. 250 00:25:16,950 --> 00:25:20,760 And so Jeff can be the voice of reason in the middle. 251 00:25:20,760 --> 00:25:28,980 Last time I was on the platform with Richard, we were talking about the military judgement, which was also in a highly contested context. 252 00:25:28,980 --> 00:25:40,830 It was a case about whether the prime minister had authority to prorogue Parliament to stop it sitting in 253 00:25:40,830 --> 00:25:48,480 circumstances where the effect of that would be an extraordinary and unjustified curtailment of parliamentary debate. 254 00:25:48,480 --> 00:25:57,930 And I say unjustified in the sense that no justification was put forward because the prime minister said you didn't need to put justification forward. 255 00:25:57,930 --> 00:26:07,020 And the courts said that that was outside the prime minister's power and importantly, that they had the jurisdiction to consider that question. 256 00:26:07,020 --> 00:26:15,450 And I was rather boring on that platform because I said that I regard it as an entirely Orthodox judgement. 257 00:26:15,450 --> 00:26:23,130 All it did was to delineate the very conventional lines of the British Constitution as it's existed since 258 00:26:23,130 --> 00:26:30,750 the 17th century and a simple restatement that in a democratic society governed by the rule of law, 259 00:26:30,750 --> 00:26:39,170 rule of law. I'm sorry if the courts, not the executive, which must ultimately determine the limits of legal authority. 260 00:26:39,170 --> 00:26:45,070 And in that case. In context of that case, 261 00:26:45,070 --> 00:26:54,160 I would say that any purportedly unlimited use of the executive power to act to prorogue 262 00:26:54,160 --> 00:26:59,920 Parliament was antithetical to the concept of ongoing parliamentary sovereignty, 263 00:26:59,920 --> 00:27:05,530 which is fundamental in a democracy governed by the rule of law to maintain because 264 00:27:05,530 --> 00:27:12,820 it curtailed the ability to operate of the legislative branch of government. 265 00:27:12,820 --> 00:27:16,630 Now this case again, highly controversial arena. 266 00:27:16,630 --> 00:27:23,500 I'm talking about the limits of the ability of the Executive to give a general warrant to 267 00:27:23,500 --> 00:27:28,960 say that there can be mass interception of communications on computers or by telephone, 268 00:27:28,960 --> 00:27:36,790 and just generally by identifying the nature of the communication rather than any individually individual case by case risk. 269 00:27:36,790 --> 00:27:41,710 So a very politically contested context. 270 00:27:41,710 --> 00:27:52,300 But the question was again a relatively simple one, which is whether Parliament this time so not the executive as in military, 271 00:27:52,300 --> 00:28:00,760 but parliament can say we do not want the courts to perform the role of deciding whether something has been lawful or not in this context, 272 00:28:00,760 --> 00:28:06,880 and we will once once the Investigatory Powers Tribunal has made a decision on that. 273 00:28:06,880 --> 00:28:09,580 That's the end of it. And the courts can't intervene. 274 00:28:09,580 --> 00:28:15,820 And if the Investigatory Powers Tribunal goes off and makes a little legal system of its own, that's all right. 275 00:28:15,820 --> 00:28:22,570 It's an OK thing we are. We Parliament are comfortable with that and we don't want the courts beyond that to be able to interfere. 276 00:28:22,570 --> 00:28:28,240 And by way of judicial review and a. 277 00:28:28,240 --> 00:28:33,820 It says that the question then for the court was whether as a piece of legislation, 278 00:28:33,820 --> 00:28:44,500 section section 67 eight of the Regulation of Investigatory Powers Act is still up there meant that any decision 279 00:28:44,500 --> 00:28:51,700 or purported decision of the Investigatory Powers Tribunal was final and the courts couldn't get involved, 280 00:28:51,700 --> 00:29:02,290 or whether that language of a lack of a decision must necessarily mean a decision, a lawful decision, a decision which was lawful for the IPT to take. 281 00:29:02,290 --> 00:29:08,860 So a decision on the facts, for example, and the Supreme Court, 282 00:29:08,860 --> 00:29:15,040 the High Court and the Court of Appeal interpreted that to mean that there could be 283 00:29:15,040 --> 00:29:22,960 no judicial review of a decision of the IPT and the Supreme Court or the majority of 284 00:29:22,960 --> 00:29:29,890 the Supreme Court to be heard for three held that section 67 eight should be interpreted 285 00:29:29,890 --> 00:29:33,820 and perhaps not in accordance with the first natural reading of that language. 286 00:29:33,820 --> 00:29:37,750 If you are not a lawyer, you just try to understand what those words meant, 287 00:29:37,750 --> 00:29:48,490 but should be interpreted not to oust the supervisory jurisdiction of the High Court to quash a judgement of the IPT for error of law. 288 00:29:48,490 --> 00:29:58,720 And it articulated the principles as to whether and how and to what extent Parliament can oust the supervisory jurisdiction of the High Court. 289 00:29:58,720 --> 00:30:07,390 Now, I think that the majority the decision of the majority in this case is entirely right because I think Lord Kahn 290 00:30:07,390 --> 00:30:14,500 was giving the leading judgement was right to say there is a very close parallel here with the A. Minick case, 291 00:30:14,500 --> 00:30:19,480 the Minick principle, which Richard said was relatively recent. 292 00:30:19,480 --> 00:30:21,820 But it's nearly as old as me, and it's older than him. 293 00:30:21,820 --> 00:30:33,820 So a long standing principle that a decision which is vitiated by an error of law is just not a decision, 294 00:30:33,820 --> 00:30:40,660 either you make a decision that you've got the power to make or the courts can say, well, because you didn't have power to make that decision. 295 00:30:40,660 --> 00:30:46,300 It's not a decision. Go away and start again. We quash it. And that was a really important principle. 296 00:30:46,300 --> 00:30:56,010 Getting away from all of. Angels on the head of a pin staff about errors of law within jurisdiction and errors as errors outside jurisdiction. 297 00:30:56,010 --> 00:31:01,470 So Lord Cowen was said that that case being half a century old. 298 00:31:01,470 --> 00:31:05,910 What he didn't say that it is half century old parliament must have legislated. 299 00:31:05,910 --> 00:31:11,610 In the light of that common law presumption, parliament has taken slightly artificially. 300 00:31:11,610 --> 00:31:20,280 I would say sometimes to understand the law, including the common law, and they must have known that you can't pass a ouster clause of this kind. 301 00:31:20,280 --> 00:31:29,610 That means that even unlawful decisions of the IPT are simply untouchable by the by the jurisdiction of the higher courts. 302 00:31:29,610 --> 00:31:38,940 And I think it's important that he decided that this was really because the character of the IPT, he said in paragraph 112 of the judgement, 303 00:31:38,940 --> 00:31:47,910 and that parliament must presume that a subordinate tribunal like the IPT can't go off and make its own local law. 304 00:31:47,910 --> 00:31:55,380 The law is the law and the court say what it is and it is somebody who isn't the cause for that reason, then. 305 00:31:55,380 --> 00:31:59,700 And you can't get away from that. 306 00:31:59,700 --> 00:32:08,390 And Lord Lloyd-Jones, who was the other judge who gave a judgement for the majority, the two judges who simply agreed with Lord Kahn, was that Lord. 307 00:32:08,390 --> 00:32:10,440 Lloyd-Jones added. 308 00:32:10,440 --> 00:32:22,560 What I think is a very important reason for agreeing with Lord Kahn was because he said not only was this judgement the right one, but it was not. 309 00:32:22,560 --> 00:32:27,420 And not only was it not a sort of departure from the intention of parliament or a 310 00:32:27,420 --> 00:32:33,630 deprivation of the power of parliament to pass legislation with a very broad effect. 311 00:32:33,630 --> 00:32:39,270 He said it was a necessary corollary of the sovereignty of parliament and that there is 312 00:32:39,270 --> 00:32:45,870 an authoritative and independent body which can interpret and mediate the legislation, 313 00:32:45,870 --> 00:32:52,080 which it's made. If you no longer have an independent body which can interpret parliament's legislation, 314 00:32:52,080 --> 00:33:01,200 then the executive becomes over mighty because it ultimately decides what the legislation means, and it keeps the courts away from that question. 315 00:33:01,200 --> 00:33:07,290 So he said that that interpretative void, if you exclude the court, 316 00:33:07,290 --> 00:33:16,980 can't properly be filled by the Legislature and it can't properly be filled by the executive. 317 00:33:16,980 --> 00:33:18,990 So I think that the Supreme Court, 318 00:33:18,990 --> 00:33:30,240 the majority here was right to say that a court should be very slow indeed to accept that parliament intended to modify a procedure by which 319 00:33:30,240 --> 00:33:43,470 statute law is mediated because otherwise the system the system of democracy governed by rule of law can't be assumed to be a system at any point. 320 00:33:43,470 --> 00:33:46,410 Parliament could stop it just as in the Miller case. 321 00:33:46,410 --> 00:33:53,430 The problem was that at any point, if the executive has an unchallengeable power to stop parliament sitting, 322 00:33:53,430 --> 00:33:58,140 then at any point the Democratic side of that decision can be stopped. 323 00:33:58,140 --> 00:34:03,180 If Parliament can say we now decide to oust the powers of the courts in any particular context, 324 00:34:03,180 --> 00:34:11,160 then the continuing system of the rule of law can't continue. So it's a bit like the canon omnipotent god creator stone. 325 00:34:11,160 --> 00:34:16,170 He cannot destroy question. You have to. You have to assume that God wants his own omnipotence to go on, 326 00:34:16,170 --> 00:34:23,820 and you have to assume in a constitution that all the all the limbs of the Constitution are meant to keep rolling along. 327 00:34:23,820 --> 00:34:33,450 And the minority judgements of which the assumptions was that was the most significant didn't agree. 328 00:34:33,450 --> 00:34:38,430 The reason those three judges didn't agree with a majority, in essence, was, I think, 329 00:34:38,430 --> 00:34:50,910 because they they thought that parliament was entitled to view the IPT as a sufficient judicial authority or a sufficient authoritative source. 330 00:34:50,910 --> 00:34:58,440 And I think often in cases of this kind, they look at the people on these, on these bodies. 331 00:34:58,440 --> 00:35:03,150 I remember being in Strasbourg, in the Big Brother watch case where Sir James Eadie, 332 00:35:03,150 --> 00:35:09,510 who's the government's most senior counsel who's counsel in this case as well, 333 00:35:09,510 --> 00:35:20,730 said to the court in Strasbourg that the reason the IPT was an appropriate remedy because of the importance and seniority of the people on it. 334 00:35:20,730 --> 00:35:27,780 And he gave the names and the status of these people. And I remember thinking this is an argument that would go down like a dream in Britain, 335 00:35:27,780 --> 00:35:31,110 and it doesn't go down well in Strasbourg because people are looking at the structures. 336 00:35:31,110 --> 00:35:38,070 I guess I'm sure they're very good and clever and distinguished people. But does this structure work in constitutional terms? 337 00:35:38,070 --> 00:35:47,990 And I think the reason Lord Sumption thought that Parliament was entitled to limit the court's jurisdiction to consider errors, the IPT was. 338 00:35:47,990 --> 00:36:00,650 In its own jurisdiction was because he did not think that ultimately this was a terribly or a wholesale exclusion of the supervisory jurisdictions, 339 00:36:00,650 --> 00:36:13,190 the court, it was almost as if the government, the government and the parliament had decided that the IPT was a was a good enough forum here. 340 00:36:13,190 --> 00:36:17,360 So that effectively, the ousted president truly asked the court's jurisdiction, 341 00:36:17,360 --> 00:36:23,930 said Lord Khan was talked about that and said it is OK for parliament to do things that limit the court's jurisdiction. 342 00:36:23,930 --> 00:36:30,350 For example, the usual limit for bringing a claim by way of judicial review is three months in relation to a planning decision. 343 00:36:30,350 --> 00:36:36,710 It's six weeks. That's all right. It might mean it might cut down the circumstances in which and the procedure 344 00:36:36,710 --> 00:36:40,580 through which you can go to court in quite a way that can be sometimes difficult. 345 00:36:40,580 --> 00:36:45,200 But it's you're not saying you can't go to court, you're just saying, here are the rules about how you can go to court. 346 00:36:45,200 --> 00:36:52,790 But once you say, no matter how wrong this decision is, the last judge of that, the last and only judge of that is the IPT. 347 00:36:52,790 --> 00:36:58,640 What you're doing is wholly excluding the supervisory judgement of the High Court. 348 00:36:58,640 --> 00:37:04,220 And ultimately, I think that the difference between Lord Khan was an assumption. 349 00:37:04,220 --> 00:37:12,230 Here lies lies in their assessment of whether there was a wholesale ouster here. 350 00:37:12,230 --> 00:37:17,630 That's my my perception of the matter and that Lord Sumption really doesn't think 351 00:37:17,630 --> 00:37:24,250 it is that ouster because the IPT is effectively an alter ego of the High Court. 352 00:37:24,250 --> 00:37:29,590 Thank you very much in detail. Jeff, here before. Thank you very much. 353 00:37:29,590 --> 00:37:35,200 So I would like to speak about this important case within the broader context of the theme of this workshop, 354 00:37:35,200 --> 00:37:41,500 as everyone else has, which is about the relationship between the courts, the executive and Legislature. 355 00:37:41,500 --> 00:37:50,920 And my view on this case and the reason I come last, this is actually rather nuanced, perhaps more so than is ideal for this setting. 356 00:37:50,920 --> 00:37:56,320 So I think I might have sided with the dissent in this case, and I been a judge on it, 357 00:37:56,320 --> 00:38:03,040 which might be contrary to the expectations of a number of people who who know me, including, probably most of all, Richard. 358 00:38:03,040 --> 00:38:08,140 But I think also that even if the case were wrongly decided on the key point, 359 00:38:08,140 --> 00:38:16,540 it doesn't evidence a constitutional coup d'etat in the way that its critics at some time suggest, and I think in the way that Richard concludes. 360 00:38:16,540 --> 00:38:24,110 So my view is that on the issue that the court decided affirmatively the first issue about how to construe this clause. 361 00:38:24,110 --> 00:38:28,190 I think the court may have been wrong, but its judgement was perfectly reasonable. 362 00:38:28,190 --> 00:38:33,260 The issue that it nearly decided that judges can put aside an act of parliament is different. 363 00:38:33,260 --> 00:38:37,520 And I think it's more controversial and I'll focus as well on that case. 364 00:38:37,520 --> 00:38:43,340 But my conclusion ultimately is that even on on that question, it would not have been a revolutionary judgement. 365 00:38:43,340 --> 00:38:51,980 And this raises the question of how one ought to respond in a constitutional system if judgements on important questions that one disagrees with. 366 00:38:51,980 --> 00:38:58,040 So I just want to go over some of the background features of this case its disposition, 367 00:38:58,040 --> 00:39:03,320 some reflections on why I think its findings on the law are not even if you disagree with them or not, 368 00:39:03,320 --> 00:39:07,910 particularly as controversial, perhaps as suggested by Richard, 369 00:39:07,910 --> 00:39:13,700 and then talk about the politics of this judgement and how it relates to a written constitution. 370 00:39:13,700 --> 00:39:16,880 So let me discuss the case in its basics. 371 00:39:16,880 --> 00:39:25,520 It's been discussed a fair bit already, but essentially the issue is whether the clause in the statute that assists juries. 372 00:39:25,520 --> 00:39:33,620 Judicial review should be read to exclude judicial review of the decision of the IPT in this case. 373 00:39:33,620 --> 00:39:37,790 And I just want to back up and the slide to the previous slide, if I could. 374 00:39:37,790 --> 00:39:44,630 Do you have to explain the substantive issue that gave rise to the proceedings? 375 00:39:44,630 --> 00:39:53,180 So under this provision, this is the provision that gives power to the Secretary of State to issue an intercept warrant to allow essentially 376 00:39:53,180 --> 00:40:00,620 the government to use bulk surveillance powers to it to monitor our communications on email and so on. 377 00:40:00,620 --> 00:40:06,020 And the question that was brought to the IPT was how broad is the power here? 378 00:40:06,020 --> 00:40:12,890 Can it? Is it narrow in the sense that the warrant has to specify a particular individual's particular property? 379 00:40:12,890 --> 00:40:22,100 Or is it so broad that the warrant can simply give a very broad licence to the Secretary of State to to cover any general theme, 380 00:40:22,100 --> 00:40:30,500 national security or maybe even a narrower theme? It would nonetheless allow it to surveil an enormous number of people, tens of millions. 381 00:40:30,500 --> 00:40:35,030 This question is a fundamental question of civil liberties under the Act. 382 00:40:35,030 --> 00:40:40,280 It is provided that a decision on this question and its compliance with the European Convention on 383 00:40:40,280 --> 00:40:46,730 Human Rights can only be determined in the UK by the Investigative Investigatory Powers Tribunal. 384 00:40:46,730 --> 00:40:51,380 No appeal from that decision whatsoever to any other court in the UK. 385 00:40:51,380 --> 00:40:54,770 That's what was substantively at stake for Privacy International. 386 00:40:54,770 --> 00:41:01,130 They brought the case, saying that the secretary of State's interpretation is far too broad and should be narrower to the IPT. 387 00:41:01,130 --> 00:41:08,630 The IPT ruled against Privacy International, and then they sought judicial review of that decision to the Supreme Court, 388 00:41:08,630 --> 00:41:14,180 the Court of Appeal and then the Supreme Court. So if we can go back to the cross, absolutely. 389 00:41:14,180 --> 00:41:21,410 So the question really is, does this clause preclude judicial review of that particular question? 390 00:41:21,410 --> 00:41:27,440 And you can see why it's important to privacy international. So the case raised two fundamental issues. 391 00:41:27,440 --> 00:41:33,560 The first was, can you read this clause in a way that would permit judicial review of that kind of decision? 392 00:41:33,560 --> 00:41:42,560 Can you read it down effectively? And on that issue, four of seven judges said it could be read down to permit review of that question. 393 00:41:42,560 --> 00:41:45,620 The question I just outlined previously. 394 00:41:45,620 --> 00:41:52,100 The second question is if you cannot read it down and this is my glass on the second issue, if it could not, so be read down. 395 00:41:52,100 --> 00:42:00,290 Could the court set it aside altogether? Could the court decide to effectively discipline a provision of an act of parliament? 396 00:42:00,290 --> 00:42:09,170 And on that question, three of the judges were in favour, three were against and one reserve judgement didn't get any views. 397 00:42:09,170 --> 00:42:15,300 So a majority of the court refused to find that that power existed in this case. 398 00:42:15,300 --> 00:42:21,130 Right, so what was the reasoning and the disposition of the judges here on the first issue? 399 00:42:21,130 --> 00:42:27,030 And I think it's important because there was some discussion about taking law seriously in the last discussion. 400 00:42:27,030 --> 00:42:33,810 So the reasoning of the majority here was that and I think that that Helen has done a much better job, but this is her job. 401 00:42:33,810 --> 00:42:38,830 For me, it was her main job. It's one of her jobs now is to explain these questions to judges. 402 00:42:38,830 --> 00:42:40,380 But as I see it, 403 00:42:40,380 --> 00:42:51,240 the the motivation for the majority judgement was that there is a trend in law discernible since the 19th century of reading down these provisions 404 00:42:51,240 --> 00:43:00,000 that is considered to be protection of the rule of law as the role of the King's Court of King's Bench to provide such interpretations. 405 00:43:00,000 --> 00:43:02,970 And furthermore, that since the case of Anna's Minnick, 406 00:43:02,970 --> 00:43:09,540 this distinction between jurisdictional errors and non jurisdictional errors of law was abolished. 407 00:43:09,540 --> 00:43:16,440 There was a lot of discussion in the dissenting judgement that said, well, A. Minnick didn't intend to abolish that distinction, 408 00:43:16,440 --> 00:43:21,330 and there was, but they wanted to to pretend that the distinction still existed. 409 00:43:21,330 --> 00:43:24,120 There's a point in lurid assumptions judgement where he says, Well, 410 00:43:24,120 --> 00:43:29,970 we we have to just take it for granted that this is how the position in law is understood by the academy and by the 411 00:43:29,970 --> 00:43:37,410 bench at the mine that this distinction between jurisdictional and jurisdictional errors is practically abolished. 412 00:43:37,410 --> 00:43:43,040 That was confirmed in the case of Page, in the case of Rakhale Communications and others. 413 00:43:43,040 --> 00:43:49,440 And this is how it's been taught in most of the law schools around the country that now that being the case, 414 00:43:49,440 --> 00:43:55,530 it meant that following A. M. Any error of law was considered to go to jurisdiction. 415 00:43:55,530 --> 00:44:04,560 And that meant that if you didn't have jurisdiction to make that error of law, the the purported the decision you came to is a purported decision. 416 00:44:04,560 --> 00:44:11,440 It wasn't a real decision, and therefore it never took place. And the ouster clause wouldn't fight to exclude it. 417 00:44:11,440 --> 00:44:22,030 So the the the decision of the majority was that in giving this their their judgement on whether this particular esther clause could be read down, 418 00:44:22,030 --> 00:44:26,020 they were following in the tradition of A. Minnick and the tradition of the cart. 419 00:44:26,020 --> 00:44:33,130 And they were following the views of esteemed legal commentators who I'll get to in a moment now that the 420 00:44:33,130 --> 00:44:40,420 the dissent took a different view and said the law is more nuanced than the majority has presented it. 421 00:44:40,420 --> 00:44:46,720 In fact, in the case of A. Minnick, none of the judges said they wanted to dispose of this distinction between jurisdictional 422 00:44:46,720 --> 00:44:52,330 and non jurisdictional errors that a number of the cases that came after a.m. 423 00:44:52,330 --> 00:44:57,940 it was acknowledged that the court might allow the decision of an inferior court to 424 00:44:57,940 --> 00:45:04,210 not be judicially reviewed when the inferior court had the features of a High Court. 425 00:45:04,210 --> 00:45:09,520 They put emphasis on that. They said that all of the cases suggested that context was highly relevant. 426 00:45:09,520 --> 00:45:16,030 And then they looked extensively at the context of the Regulation of Investigatory Powers Act. 427 00:45:16,030 --> 00:45:27,760 And in so doing, they said it's very hard to read this particular clause in context as allowing judicial review or on substantial grounds. 428 00:45:27,760 --> 00:45:35,980 Because the act, as Richard, I believe, pointed out, the act permitted in some cases for the secretary of state to allow appeals on points of law. 429 00:45:35,980 --> 00:45:42,010 That power had not been exercised here and that the phrase that is appears within parentheses, 430 00:45:42,010 --> 00:45:46,420 including decisions as to whether the courts have jurisdiction. 431 00:45:46,420 --> 00:45:55,180 The tribunal has jurisdiction that those very words were inserted by the draughtsman in order to get around the limit that sought to place. 432 00:45:55,180 --> 00:46:07,060 So these were the reasons that were offered by law assumption and Lord Reid and I believe, adopted by Lloyd Wilson as well. 433 00:46:07,060 --> 00:46:10,750 This is the disposition on on that that case. 434 00:46:10,750 --> 00:46:19,480 I think on the narrow grounds that I've just outlined, I think probably the dissent is closer to the truer position, 435 00:46:19,480 --> 00:46:27,070 if only because the the rule of the doctrine of parliamentary legislative supremacy is important in this picture. 436 00:46:27,070 --> 00:46:31,810 It is a constitutional fundamental. And the majority position does come close. 437 00:46:31,810 --> 00:46:40,210 I think in this case, it's all a matter of construction in this particular case to negating any legal effect of this provision. 438 00:46:40,210 --> 00:46:47,740 OK, but that that is my view on this issue, and I'll explain why I don't think that my my view being that precludes me from 439 00:46:47,740 --> 00:46:52,250 saying that the majority judgement was reasonable and I'll come to that in a second. 440 00:46:52,250 --> 00:46:58,700 Now, the second question. If you can't read this down, can the court set it aside altogether? 441 00:46:58,700 --> 00:47:04,760 That's different. I mean, there's no question that that would create a fundamental departure. 442 00:47:04,760 --> 00:47:12,320 An assertion of the power of the judges under the common law to set aside an act of parliament is plainly inconsistent. 443 00:47:12,320 --> 00:47:21,830 I think with the doctrine as it's been received, even taking account of tame operation of EU law, the Human Rights Act and so on. 444 00:47:21,830 --> 00:47:28,960 But I'll come to how we should react to that in a moment. Now, I said my reaction was. 445 00:47:28,960 --> 00:47:37,150 Was probably that the dissent may have been right in this case, I know that's the view of Haley and others. 446 00:47:37,150 --> 00:47:43,810 But I don't think that we should react with outrage for three key reasons here. 447 00:47:43,810 --> 00:47:49,090 First is that there was a very plausible legal argument that supported the majority opinion. 448 00:47:49,090 --> 00:47:53,980 A significant number of legal scholars thought the Court of Appeal decision was wrongly decided, 449 00:47:53,980 --> 00:48:00,100 and these were not limited to those who had a pro court orientation in their legal theory. 450 00:48:00,100 --> 00:48:09,190 So, for instance, the the excellent legal writer and constitutional theorist Adam Tucker was heavily critical of the Court of Appeal decision, 451 00:48:09,190 --> 00:48:17,260 which he thought breached the rule of law. Now, the views of Lord Cornwell's were more or less congenial to those of Sir William Wade. 452 00:48:17,260 --> 00:48:23,740 Professor Paul Craig and Professor Jeffrey Jawad. And I'm not making an appeal to authority here, 453 00:48:23,740 --> 00:48:30,250 but what I'm showing is that these three individuals are the authors of the three leading texts on administrative law, 454 00:48:30,250 --> 00:48:35,980 the most authoritative sources to Smith Craig on administrative law and weighed in foresight. 455 00:48:35,980 --> 00:48:45,970 Although Christopher Forsyth takes a different view now, I think that his predecessor took the view that as clauses were more or less unenforceable. 456 00:48:45,970 --> 00:48:50,620 So there's plenty in the case law that supports the majority decision. 457 00:48:50,620 --> 00:48:57,280 That's why I don't think that one can castigate it as some kind of judicial frolic in this particular case. 458 00:48:57,280 --> 00:49:02,440 So to put the point, maybe a little differently if there was an error of law here. 459 00:49:02,440 --> 00:49:06,700 It was an error that was within the jurisdiction of the Supreme Court to make. 460 00:49:06,700 --> 00:49:13,410 The second point is that I think it's entirely wrong to see this issue as a turf war between the courts, 461 00:49:13,410 --> 00:49:18,250 the between obstreperous judges on the one hand and government and parliament on the other. 462 00:49:18,250 --> 00:49:23,050 So one thing that's been omitted from all the discussions we've seen in the cases so far is that the issue 463 00:49:23,050 --> 00:49:28,630 of ouster clauses was an enormously significant issue in the early construction of the administrative state. 464 00:49:28,630 --> 00:49:33,040 Lord Chief Justice Gordon Stewart wrote a series of articles in the early 1920s 465 00:49:33,040 --> 00:49:37,120 that were serialised but then published as a book called The New Despotism. 466 00:49:37,120 --> 00:49:44,410 And it was seen by most politicians and people outside of the bar at the time as a reactionary backlash against the new welfare states. 467 00:49:44,410 --> 00:49:51,370 It attacked delegated legislation and it attacked the control by parliament of the jurisdiction of the courts. 468 00:49:51,370 --> 00:49:57,070 So a committee of Parliament, the Committee on Ministers Powers, was formed the Donmar Committee, 469 00:49:57,070 --> 00:50:04,810 and it reported in the early 1930s it was basically formed to investigate the claims that he had made about whether delegated 470 00:50:04,810 --> 00:50:14,140 legislation and this gradual restriction of the powers of the courts were somehow unconstitutional and on delegated legislation. 471 00:50:14,140 --> 00:50:19,120 They concluded that the practise was quite justifiable and Lord Hewitt had overreacted. 472 00:50:19,120 --> 00:50:26,470 But on the issue of elster clauses, the committee was absolutely unequivocal that these were constitutionally offensive. 473 00:50:26,470 --> 00:50:34,630 The kind of ouster clauses that we're looking at now. They were contrary to constitutional principle and that they should not be used. 474 00:50:34,630 --> 00:50:39,400 The Committee on Ministers Powers was described by a contemporary commentator 475 00:50:39,400 --> 00:50:43,030 as just the kind of committee that you would expect to have been appointed by 476 00:50:43,030 --> 00:50:49,000 the Conservative Party of its views were effectively agreed by all the political 477 00:50:49,000 --> 00:50:54,090 parties and all the branches of government that were prevalent at that time. 478 00:50:54,090 --> 00:51:01,180 That was the last official quiet enquiry that was political in nature, as well as theoretical in nature about ouster clauses. 479 00:51:01,180 --> 00:51:07,810 So I don't think that what came from A. medick onwards is just a turf war by the judges. 480 00:51:07,810 --> 00:51:10,930 Third and lastly, one may say, 481 00:51:10,930 --> 00:51:19,180 is not the effect of this judgement to say that it leaves us with no words whatsoever for parliament to ask the control of the courts. 482 00:51:19,180 --> 00:51:20,680 It becomes impossible to do that. 483 00:51:20,680 --> 00:51:29,500 Legally speaking, I don't think that's the case because there is a formula that was laid before parliament in the Asylum and Immigration Bill 2003, 484 00:51:29,500 --> 00:51:35,470 which was unequivocal in doing what it is, contended that this should have done, 485 00:51:35,470 --> 00:51:40,150 and there is a huge backlash in Parliament and the government backed down. 486 00:51:40,150 --> 00:51:47,590 So any government which wishes to in completely unequivocal terms, completely out of the power of the courts, 487 00:51:47,590 --> 00:51:55,900 they know the words to use and they will face huge backlash in parliament of the sort that I don't think existed when this act was passed. 488 00:51:55,900 --> 00:52:02,290 So those are three reasons why I think the majority view as respectable. What about the politics of it, though? 489 00:52:02,290 --> 00:52:08,410 Well, I've offered an explanation that sort of defends the case, but admits that it's doubtful. 490 00:52:08,410 --> 00:52:14,820 So what do we do in this situation? 491 00:52:14,820 --> 00:52:26,670 The reason why I'm critical of this case in this in a very mild way, and I still have to confess, not entirely, I have not entirely concluded. 492 00:52:26,670 --> 00:52:32,820 I'm open to being persuaded that I'm wrong by the kinds of arguments that that Howard has mentioned. 493 00:52:32,820 --> 00:52:37,020 I don't think that I'd be moving any closer to Richard's position, 494 00:52:37,020 --> 00:52:45,420 but I ActionScript perhaps so the reason why I think that I I'm attracted in a way to the dissent, 495 00:52:45,420 --> 00:52:52,620 even though I think in a different constitutional system, there's no doubt that this question should be decided by a court of law. 496 00:52:52,620 --> 00:52:56,310 That goes all the way up to the Supreme Court. But why do I think here? 497 00:52:56,310 --> 00:52:57,690 Why might I side with the dissent? 498 00:52:57,690 --> 00:53:06,150 And I think it's this that fidelity to the law and the sources of authority are extremely important for judges to observe in the long term. 499 00:53:06,150 --> 00:53:13,890 And I think that's the case because the warrant for judicial review ultimately in our society is that it should be linked to democratic authorisation. 500 00:53:13,890 --> 00:53:19,920 Normally, that warrant is uncontroversial because courts normally enforce statutory law or the bits of the common law, 501 00:53:19,920 --> 00:53:27,070 which we've acquiesced in their application or because it arises from a written constitution. 502 00:53:27,070 --> 00:53:37,690 But my view is that major constitutional shifts under a written constitution should be generally reserved for the 503 00:53:37,690 --> 00:53:45,610 legislative organs of the state or for specially constituted constitutional organs like a constituent assembly. 504 00:53:45,610 --> 00:53:46,930 So judges, I believe, 505 00:53:46,930 --> 00:53:57,520 normally should not be effecting major shifts in the constitutional landscape unless the Constitution at issue is extremely rigid. 506 00:53:57,520 --> 00:54:01,240 In that sort of case, I think you need a theory about when it becomes appropriate. 507 00:54:01,240 --> 00:54:07,600 This is where Bruce Ackerman has tried to do in his work. But that's not the case here in the UK. 508 00:54:07,600 --> 00:54:13,750 Now, why am I so concerned with the mandate and fidelity? And I think the concern is a principle that a practical one, 509 00:54:13,750 --> 00:54:23,370 the principle of one is that the values underlying the rule of law and of democracy extend to the rule of the judges in this kind of context as well. 510 00:54:23,370 --> 00:54:31,030 The practical problem is that if judges are seen to exceed their mandate and there's a plausible case that they have. 511 00:54:31,030 --> 00:54:34,390 Then what will happen will either be that politically, 512 00:54:34,390 --> 00:54:42,560 people will discourage resort to law and to constitutionalism to resolve social problems, which I think would be negative. 513 00:54:42,560 --> 00:54:49,330 Or the judicial appointments process will become corrupted and therefore public law will become corrupted. 514 00:54:49,330 --> 00:54:55,400 And that's what I think would be wrong now applying those thoughts to the privacy international case. 515 00:54:55,400 --> 00:55:00,710 I think that this kind of reasoning means that the law relating to the first issue how to construct the 516 00:55:00,710 --> 00:55:07,490 clause was insufficient flux to say that there's nothing fantastic about this particular judgement. 517 00:55:07,490 --> 00:55:15,320 Thank you. But on the second issue, if there had been a decision to decide the courts, 518 00:55:15,320 --> 00:55:23,030 it decided to set aside the act of parliament entirely to say it is impossible for Parliament to oust the review using any terminology. 519 00:55:23,030 --> 00:55:26,840 I think that would be a major constitutional shift and I would be against it. 520 00:55:26,840 --> 00:55:37,630 But how do we respond to that? I think that sacking judges, this is to me, obviously the wrong idea, so I disagree with that. 521 00:55:37,630 --> 00:55:40,260 It was admittedly controversial, but I think it's wrong. 522 00:55:40,260 --> 00:55:48,660 I think legislative intervention, select committee enquiries, resolutions of the House of Commons or Lords political and academic discussion. 523 00:55:48,660 --> 00:55:52,000 That's the way to respond to that particular issue. 524 00:55:52,000 --> 00:55:57,720 And I'd say woe to those who think that a constitutional [INAUDIBLE] for tat is the right way forward. 525 00:55:57,720 --> 00:56:01,500 And I think I can borrow as I've wanted to do for 20 years. 526 00:56:01,500 --> 00:56:09,330 The African proverb that when the elephants fight, it's the grass that suffers, and I have waited 20 years to say that. 527 00:56:09,330 --> 00:56:16,830 The second point is to emphasise a certain irony, I think in the strong criticism of this judgement, which is that in my mind, 528 00:56:16,830 --> 00:56:23,280 it's precisely the absence of a written constitution that makes this kind of move that is made by majority judges. 529 00:56:23,280 --> 00:56:28,290 The move they didn't take even of setting aside an act of parliament somewhat plausible. 530 00:56:28,290 --> 00:56:34,260 The basis of parliamentary legislative supremacy in this country is not legislative, it's not constitutional. 531 00:56:34,260 --> 00:56:38,400 It's customary and customs can change within the system. 532 00:56:38,400 --> 00:56:42,000 They change by some of the actors in the system, whether it's parliament, 533 00:56:42,000 --> 00:56:48,420 as in parts of the European Communities Act or judges on a case like these propose a new change, 534 00:56:48,420 --> 00:56:57,210 a new rule of recognition, a new constitutional understanding, and the rest either agreeing or acquiescing or disagreeing and rejecting it. 535 00:56:57,210 --> 00:57:03,810 So the Common Law Constitution, the status of parliamentary sovereignty based on custom allows this kind of move, 536 00:57:03,810 --> 00:57:07,870 I think in a way that a written constitution ironically wouldn't allow. 537 00:57:07,870 --> 00:57:12,480 We're not straightforwardly allowed. Furthermore, a democratically enacted written constitution, 538 00:57:12,480 --> 00:57:18,060 one that's flexible would allow us to have a more adult conversation about these kinds of decisions, 539 00:57:18,060 --> 00:57:19,890 like we have with the Human Rights Act, 540 00:57:19,890 --> 00:57:26,790 which I think are productive in a way that we can't when we're talking about the scope of judges to get judgement. 541 00:57:26,790 --> 00:57:34,020 So I'll stop there. Thank you. Thank you very, very much indeed to all three of our panellists. 542 00:57:34,020 --> 00:57:37,560 We have to be out of here at quarter past the hour. Exactly. 543 00:57:37,560 --> 00:57:45,940 I'm just going to take a minute or two to sum up on what I think are the kind of key political themes in the privacy international judgement. 544 00:57:45,940 --> 00:57:52,990 And contrary to what some of her speakers have said, I think this is genuinely a case of where the law is right. 545 00:57:52,990 --> 00:58:01,260 OK, you can take the literal reading of the statute as Lord Wilson does and pave the path for authoritarianism. 546 00:58:01,260 --> 00:58:09,810 Or you can do something else. And both the majority and the minority reasons reason from the court case in different ways, 547 00:58:09,810 --> 00:58:17,580 and particularly Baroness Hale's judgement and cart, where she says effectively the court is faced with an issue of principle. 548 00:58:17,580 --> 00:58:24,420 And I think both of the decisions and the majority in the minority are principle for different reasons. 549 00:58:24,420 --> 00:58:29,220 One stands by the principle that there simply cannot be a tribunal which develops 550 00:58:29,220 --> 00:58:34,350 local laws that apply specifically to government agencies of a certain class, 551 00:58:34,350 --> 00:58:38,400 particularly the intelligence agencies where the general law that applies to 552 00:58:38,400 --> 00:58:43,110 you and I in terms of human rights and torts might do something different. 553 00:58:43,110 --> 00:58:48,660 The minority, which I don't think this was brought perhaps enough and the discussion neither 554 00:58:48,660 --> 00:58:53,940 the minority nor the majority think there is the clause is completely effective. 555 00:58:53,940 --> 00:58:56,880 The minority simply thinks that we can trust. 556 00:58:56,880 --> 00:59:06,930 We can have faith in parliament to reasonably allocate, not to reallocate a jurisdiction of supervision to a specific tribunal. 557 00:59:06,930 --> 00:59:14,550 So I suppose in that regard, I see both political scepticism and political face on both sides and not the local law point, 558 00:59:14,550 --> 00:59:24,840 a scepticism of parliament's authority to initially a particular class of government agencies from the general supervisory jurisdiction of the courts. 559 00:59:24,840 --> 00:59:28,230 But picking up on Jeff's final comments about yes, 560 00:59:28,230 --> 00:59:35,520 there is indeed the formulation of words which would make him more successful on the majority is quite clear on this. 561 00:59:35,520 --> 00:59:40,860 But we see using the principle of in the Sims case that Parliament must squarely 562 00:59:40,860 --> 00:59:46,950 confront the political cost of anything it does that violates fundamental rights. 563 00:59:46,950 --> 00:59:52,900 The majority says they tried at one stage on the political cost was simply too high. 564 00:59:52,900 --> 00:59:59,260 I think that actually puts a lot of faith in our political and legislative institutions. 565 00:59:59,260 --> 01:00:05,140 So I'm going to add my comments there because we want to open up to a wider discussion. Is there any questions right there in the audience? 566 01:00:05,140 --> 01:00:10,810 Thank you. I'm sorry to the remaining audience members who didn't have the opportunity to have the questions asked. 567 01:00:10,810 --> 01:00:17,181 Could you please join me in thanking or three panellists for an illuminating perspective?