OK. Good afternoon, everyone, and welcome to the third and final panel today of law and politics in three courts.
We're coming home to the jurisdiction that we're in, though, with the case of Privacy International and Investigatory Powers Tribunal.
This is a recent decision in which the UK Supreme Court had to confront a longstanding problem in our own codified constitution.
The extent to which Parliament can,
by way of primary legislation outside the jurisdiction of the high courts to conduct judicial review of administrative bodies or inferior tribunals.
We have three distinguished speakers here today Professor Richard Eakins from the University of Oxford.
Professor Jeff King from University College London. And Helen Montville, QC of Mansfield College on the bar.
So we couldn't be any luckier. We really do have some experts. I'm going to be quiet very, very shortly.
We've asked each of the speakers to speak for no more than 20 minutes because we have to leave this lecture
theatre after a certain time to allow for Mansfield College to carry on with a prestigious lecture this evening.
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.
The main dispute arose when Privacy International sought judicial review before the Investigatory Powers Tribunal,
a specialist security tribunal tasked with overseeing surveillance complaints against various public bodies,
including local authorities, the police, other intelligence services,
as to the legality of using Section five five of the Intelligence Services Act to issue a bulk warrant for mass computer hacking.
So the Investigatory Powers Tribunal that said this was indeed lawful.
Privacy International was the softest point and sought judicial review in the High Court.
The High Court said, unfortunately, that the ouster clause and the Regulation of Investigatory Powers Act,
which reads as you can see on the screen except to such extent as the Secretary of State,
may by order otherwise provides determinations, awards orders and other decisions of the Tribunal,
including decisions as to whether they have jurisdiction, shall not be subject to appeal or be liable to be questions and any court of law.
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.
The Tribunal from judicial review by the time we made it to the Supreme Court.
The majority found that the clause was not wholly effective and could not entirely insulate the tribunal from the jurisdiction of the High Courts.
I am going to end my comments here. I turn you over to the panellists, professor.
You can just first thank you. Thank you, Haley. It's a pleasure to be here to speak to you about this case.
So we do have free. How can you see better? We have the provision up here behind us.
It's worth adding that there was a tiny subsection.
Subsection nine imposed a duty on the secretary of State to bring into force and to maintain an order
allowing for an appeal in relation to certain types of decision of the Investigatory Powers Tribunal.
That provision was never brought into force because it was for the Secretary of State to decide on the commencement of the provisions,
and it does seem to be something of an omission in legislative craft.
One could imagine that would be more sensible to bundle these provisions together or Section 67,
or that might have been more difficult than I imagined.
And these are the subsection requiring an appeal introduced and making provision for how it should
be tabled before Parliament and consultation all swept away by a new section section 67 eight,
which brings into force appeals on questions of law.
But that section post states.
This is the beginning of these proceedings, and so it does not apply to the two questions for the Supreme Court to decide.
One was the question to which Hayley referred, namely, does the Santa Clause work?
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?
Second question, which is best I can tell, was only raised in the speech before the Supreme Court.
And this is the question whether and if so on what principles may parliament by statute allows the supervisory
jurisdiction of the High Court to quash a decision of an inferior court or tribunal with limited statutory jurisdiction?
And Lord Sumption with Lord Reid and agreements in the minority dissenting refer to that second question as an exam question.
And you can see what they mean, and it probably will be an exemption officer if it hasn't been already.
It looks me as though the point of that question has to be to ask whether,
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.
And that seems to me to be a very surprising question to pose.
These deposed to court in this jurisdiction, the Supreme Court justices understand the question in slightly different ways, I think.
And I'm open to correction is how it should have been understood.
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.
And that's a surprising question, as I say, because I think parliamentary sovereignty provides the answer,
but I'll come back to that question shortly. So Haley referred to the proceedings below, and I think they really do repay attention.
Both divisional courts.
We have an interesting disagreement between Sir Brian Leveson and Mr Justice Leaguers, who will soon be Lord Liggett's of the Supreme Court.
And Mr Justice Liggett's cause.
I dissent if you like, because it sets out the reasons why he's not persuaded that the articles works,
although he's willing to go along with the judgement in order to get the appeal moving, which I think is perfectly proper.
Mr Justice League, it's reasoning, is intricate and impressive.
I think I didn't agree with this, but it did make me pause, slow down and response to the strong presumption that is,
of course, there in our system and in most other common law systems.
To my knowledge,
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.
And Mr Justice Liggett's reasoning takes very seriously the difference between this
obstacles and the obstacles that was in dispute in the famous and his medical judgement.
And he thinks with some care about the significance or not of the Secretary of State's power to make
provision for appeals and about Parliament's subsequent decision to to allow an appeal on questions of law,
which he thinks demonstrates parliament's view that there is no policy reason against such appeals.
Now, I'm not persuaded by that party analysis myself.
I think it slips a little from a proper focus on Parliament's reasoning in enacting the subsection in the first place,
and it did make me wonder about the section's effectiveness or its ineffectiveness.
And ousting other grounds of judicial review, especially with those grounds, might involve disclosure of facts relevant to national security,
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.
Who's now Lord sales of the Supreme Court moving around.
He gave the judgement of the court upholding the reason below, and this judgement is very well crafted.
Recognising the presumption of that, our schools should be read very strictly, saying this is an instant instance of the principle of legality.
But concluding that just like every other provision,
you read a subsection like this by taking very seriously its language and the context of enactment in order to infer what parliament intended.
And he thinks what parliament was to exclude judicial review of decisions of the of the Tribunal, including decisions that could be quashed otherwise.
And he makes a great deal of the structure of the Act's membership of the Tribunal.
Risks to national security of proceedings are conducted in other forms, and it's not denying that, he says outright.
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.
And I think most importantly, although maybe doesn't spell this out,
whether that is a cost worth paying is for Parliament to decide, and he thinks it did decide.
Supreme Court, we have four different judgements, as I recall, four judges of the seven agreeing that's the subsection doesn't work,
it doesn't oust jurisdiction, I say doesn't work methods to question me.
It doesn't oust the jurisdiction of the High Court on the grounds of error of law.
And three of those four addressed the second question.
And it's little complex judgement with whom Lady Hale and Booker agree.
And she makes clear that this is not necessary strictly to address that question.
That's what we hear he's going to provide.
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.
And Lord Lloyd-Jones agrees with the with Luke Thomas and Co. on first question that doesn't doesn't go off the second.
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.
They start trying to think about how the common law works. And I found it stimulating in that regard.
Both how common lawyers articulates, recognise developed principles over time,
develop lines of case law and maybe especially how they understand and receive statutes
and place of Parliament's authority to enact statutes in relation to the common law.
Now, so the great delight of many academics, I'm sure, especially those societies, it's a highly academic judgement,
much engagement with academic literature, a great reflection on on the relevant authorities.
And the main body of the judgement really is a tour through those authorities tracing the working out of principle,
especially the principle of the rule of law and that principle.
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.
So what does she want to learn from the tour? Well, I think we should discern that something which is clearly true,
there's a very strong tradition of judicial hostility to or scepticism about our laws as they are read narrowly.
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,
which is this long and well-established,
not all errors of law across that time and in that tradition have been reviewable the modern English position,
which we now have effectively all areas of law reviewable that comes pretty late in the piece.
So an ouster clause that restored the protected and in theory of what is right to
make some errors of of law might be consistent with that tradition over time,
even if it's pretty hard to articulate where the space for error of law would be, what the jurisdiction of the authority is,
extensive discussion of the famous and as being a judgement as you might expect, rightly stressing,
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.
And there's a lovely discussion of the judgement of Stephen Said work,
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,
how Treasury counsel received and understood the judgement, and that being quite significant in forming forming the common law.
Now, having said that, insofar as this support is a response to the judgement and as many as many of the judges have
thought and response in particular to how those judges avoided the obstacles in the A.M.E. case,
it would seem you do need to focus pretty strictly on how the court reasoned in that case,
rather than on the law that arose in consequence on on the judgement look come with
makes a great deal of the Supreme Court's judgement cut out a few years back now.
And I think it's a little comfort in a way. Privacy International is the logical extension of cars,
and his judgement partly involves the defence of of the reasoning that that went on in that case,
a defence against academic criticism that it was really a victory for judicial pragmatism over principle to decide for itself what's the
balance of judicial review should be they they designed an optimal system of review when really there should be the business of designing it,
they should have look at one case from next in accordance with principles that are justified and require a certain outcome.
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.
And that's the act that brings into existence the Supreme Court, which transfers the jurisdiction of that committee,
the House of Lords to the Supreme Court and section one, I think is pretty old.
Section myself provides that nothing in the act detracts from the existing constitutional principle of the rule of law.
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.
To my mind, Drew recognises the rule of law as a constitutional principle.
I think it is is something of a reach to leverage that recognition of that qualification.
Savings pools, if you like, into a wider ground of legal action, especially since,
as I read the section, it is focussed on the effect of the 2005 act itself.
But little comma certainly seems to have a wide understanding of the significance of that provision in mind.
That it refers either to the Act or to that section as as our modern constitutional settlement.
I went to look at how it handles the first question and then in the second.
So in terms of how he interprets and understands the subsection,
more or less rejects argument from legislative intent, I say more or less because it's not entirely clear.
He rejects counsel for the governments and says that this effectively downplaying
or discounting the tradition that you read ouster clauses in a different way.
Although he then refers to parliaments and scapegoats, policy intention says that's not the not the be all and end all.
It's not the decisive factor here.
And I would agree insofar as the relevant intention is parliament's lawmaking intention, given the constitutional matters in play,
given that there is a standing presumption against ouster of the High Court's supervisory jurisdiction.
So and it maybe it's not entire rejection of legislative intent,
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.
But I think it's an implication of the reasoning and not many paragraphs really the key part of the judgement.
I think it's an implication of his reasoning that one can the court can legitimately adopt a meaning.
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
the language is insufficiently clear to do what and what is being argued has been done.
There's some discussion of religious obstruction,
but that's pretty categorical dismissal of the relevance of the Supreme Court's power to create an appeal,
and also of the security concerns about allowing judicial review proceedings more generally.
Now it seems to me what matters here and the significance of the come reasoning is that he's not adopting
the perspective of the parliament that enacted this provision in the way that Lord Justice sales did,
for example.
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.
Look how it isn't proceeding. Thus this thing, just the clarity of language, force me to accept that an outsider has taken place.
And he concludes, No, it does not force me to reach that conclusion.
But nonetheless, he goes on to answer the second question even if it were clear enough to force me to otherwise accept announced it.
Does Parliament have that authority?
Now it will come with nominally distinguishes this litigation, and this question will be more precise from the Jackson case.
Some of you will know. Two thousand and five As I recall, House of Lords hearing a challenge to the Hunting Act,
a challenge by way of reflection on the Parliament Act 1911 in nineteen forty nine.
And one of the reasons that case is quite well known in this legal system is because it's how you count.
But a number of judges, especially Goldstein and Lord Hope, make some startling remarks about parliamentary sovereignty,
but how parliamentary sovereignty may no longer be the law or maybe being qualified by events overtaken Lord Hope as a ringing line
about the rule of law being the new foundational line foundational ground of the Constitution qualifies parliamentary sovereignty.
Now look how it doesn't quite say that, but it's the sort of question that's been put to them,
which is going on to answer, and he takes it to be common to all the parties in the case.
The rule of law is the fundamental proposition in the legal system.
I'm not sure that really does capture what Sir James was arguing, but I haven't checked.
So take it away from the judgement. And he's not saying either strictly that this that the rule of law is.
Lord hopes it is superior to parliamentary sovereignty,
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.
Some discussion about whether it's logically impossible to exclude judicial review if you enact a limited body,
doesn't that imply that there must be a superior court with capacity to enforce the limits?
I think it's a mistake in. It's very interesting, logically of interesting but mistaken.
You can't confer a limited duty without thereby empowering some other body to enforce the limits.
But the direction of travel for the reasoning and the judgement is towards a strong assertion that
it's for courts rather than for the Legislature to decide the limits of judicial review at large.
In all cases, I think. And it seems to me this is a culmination of the cart type of reasoning in which the
Supreme Court perceives itself to have a capacity to design an optimal review structure,
with the Legislature not having a capacity to to displace or set aside the court's reasoning on point.
And he makes again a great deal of the significance of section one of the Constitution reformatted to that end.
Now, a few striking points nearly at the end of the resolution of Question two.
He reasons that announced a clause that limited judicial review to the High Court,
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.
And that is quite startling because presumably there would be no lack of clarity.
You said maybe judicial review to the High Court, but they might not be no appeals to the higher the Court Appeal Supreme Court.
He's holding that would not be a lawful enactment. And the final this is the sharp end of this argument is paragraph 144.
I see a strong case for holding consistently with the rule of law,
finding it cannot be given to a clause which purports wholly to exclude supervisory jurisdiction of the High Court, et cetera.
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 court should be upheld, et cetera, et cetera.
Now that looks to me like the Jackson victor more narrowly cast, but perhaps more forcefully put by more judges too.
And I think the mistake here is that runs pretty squarely into parliamentary sovereignty.
Parliament has authority to make, law, has authority to change the court structure,
has authority to limit the jurisdiction of the courts and to limit rights of appeal.
And the earlier cases have held as much. Also held, you should be extremely slow to conclude that this is what's happened.
I think that's broadly true. The surprise shouldn't shouldn't accept it lightly, and parliament's authority could well be use.
Parliamentary sovereignty is open to abuse. You could use it to to undermine the rule of law.
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.
And therefore, it's it's upheld partly by the rule of law itself requires respect.
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.
And that may be much more consistent with the rule of law than leaving this up to judicial argument,
especially with that justice argument involves putting into doubt statutes that otherwise are good law.
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.
So if anything,
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.
That there would be no political or legislative response or at least very unlikely would be one because section 67 has already been enacted.
And of course, they're not actually acting on the victor. They're simply propounding is ceding the caseload more possibilities.
So in that way, I wonder if it is a distant or weak analogy to Marbury versus Madison.
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,
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.
And I think just to give us a sharp edge, the conclusion the discussion of its judges would act on that.
So if they head squarely said this is an act of parliament that does oust the jurisdiction of our court,
therefore lies beyond perhaps authority and is not act.
There is no law that would have been a revolutionary act inconsistent with the fundamental constitutional law of this legal system.
It would have been open to well to parliament to certainly to legislate to make clear that the judgement no seat two other judges
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.
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.
I hope we never get married again. We'll see. Stop it.
Thank you. Thank you very much, Richard. Yes.
We'd like to invite Helen to give her remarks. Thank you.
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,
which said we were meant to start this session at a quarter to three and it was in my diary for three o'clock.
So I'm very sorry and quite so late.
It's a diary problem, not an unwillingness to be here.
It's very interesting discussion, and it seems to me that the answer to that question,
the overarching answer to that question is in exactly the same way as they should and operate in other areas,
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.
We must not perform our job. I think it's very important that courts are seen as independent in both senses of that word
that they neither shine a work shy away from issues because of the context nor enter the arena.
And I was interested in the point that Richard picked up on.
Stephen said his observation about the role of government lawyers, treasury counsel.
Because. Clearly, in an unwritten constitution like the one in this country, the ongoing existence of a democracy governed by the rule of law,
so both aspects of that really does depend on all constitutional actors
continuing to have and participate in a shared understanding of how this works.
And I think there's a bit of a crisis in this country now because people are picking up
judgements with which they disagree and suggesting that there's no legitimacy to that,
rather than disagreements about where the boundaries lie between the judges.
And I think it's a matter of concern in what around the world and arguably here too,
although to a lesser extent than in other places in the world, is a populist moment.
So we agreed that I will go before Jeff because on these questions, I think Richard is very much the roundtable on the Cavalier.
And so Jeff can be the voice of reason in the middle.
Last time I was on the platform with Richard, we were talking about the military judgement, which was also in a highly contested context.
It was a case about whether the prime minister had authority to prorogue Parliament to stop it sitting in
circumstances where the effect of that would be an extraordinary and unjustified curtailment of parliamentary debate.
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.
And the courts said that that was outside the prime minister's power and importantly, that they had the jurisdiction to consider that question.
And I was rather boring on that platform because I said that I regard it as an entirely Orthodox judgement.
All it did was to delineate the very conventional lines of the British Constitution as it's existed since
the 17th century and a simple restatement that in a democratic society governed by the rule of law,
rule of law. I'm sorry if the courts, not the executive, which must ultimately determine the limits of legal authority.
And in that case. In context of that case,
I would say that any purportedly unlimited use of the executive power to act to prorogue
Parliament was antithetical to the concept of ongoing parliamentary sovereignty,
which is fundamental in a democracy governed by the rule of law to maintain because
it curtailed the ability to operate of the legislative branch of government.
Now this case again, highly controversial arena.
I'm talking about the limits of the ability of the Executive to give a general warrant to
say that there can be mass interception of communications on computers or by telephone,
and just generally by identifying the nature of the communication rather than any individually individual case by case risk.
So a very politically contested context.
But the question was again a relatively simple one, which is whether Parliament this time so not the executive as in military,
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,
and we will once once the Investigatory Powers Tribunal has made a decision on that.
That's the end of it. And the courts can't intervene.
And if the Investigatory Powers Tribunal goes off and makes a little legal system of its own, that's all right.
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.
And by way of judicial review and a.
It says that the question then for the court was whether as a piece of legislation,
section section 67 eight of the Regulation of Investigatory Powers Act is still up there meant that any decision
or purported decision of the Investigatory Powers Tribunal was final and the courts couldn't get involved,
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.
So a decision on the facts, for example, and the Supreme Court,
the High Court and the Court of Appeal interpreted that to mean that there could be
no judicial review of a decision of the IPT and the Supreme Court or the majority of
the Supreme Court to be heard for three held that section 67 eight should be interpreted
and perhaps not in accordance with the first natural reading of that language.
If you are not a lawyer, you just try to understand what those words meant,
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.
And it articulated the principles as to whether and how and to what extent Parliament can oust the supervisory jurisdiction of the High Court.
Now, I think that the majority the decision of the majority in this case is entirely right because I think Lord Kahn
was giving the leading judgement was right to say there is a very close parallel here with the A. Minick case,
the Minick principle, which Richard said was relatively recent.
But it's nearly as old as me, and it's older than him.
So a long standing principle that a decision which is vitiated by an error of law is just not a decision,
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.
It's not a decision. Go away and start again. We quash it. And that was a really important principle.
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.
So Lord Cowen was said that that case being half a century old.
What he didn't say that it is half century old parliament must have legislated.
In the light of that common law presumption, parliament has taken slightly artificially.
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.
That means that even unlawful decisions of the IPT are simply untouchable by the by the jurisdiction of the higher courts.
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,
and that parliament must presume that a subordinate tribunal like the IPT can't go off and make its own local law.
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.
And you can't get away from that.
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.
Lloyd-Jones added.
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.
And not only was it not a sort of departure from the intention of parliament or a
deprivation of the power of parliament to pass legislation with a very broad effect.
He said it was a necessary corollary of the sovereignty of parliament and that there is
an authoritative and independent body which can interpret and mediate the legislation,
which it's made. If you no longer have an independent body which can interpret parliament's legislation,
then the executive becomes over mighty because it ultimately decides what the legislation means, and it keeps the courts away from that question.
So he said that that interpretative void, if you exclude the court,
can't properly be filled by the Legislature and it can't properly be filled by the executive.
So I think that the Supreme Court,
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
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.
Parliament could stop it just as in the Miller case.
The problem was that at any point, if the executive has an unchallengeable power to stop parliament sitting,
then at any point the Democratic side of that decision can be stopped.
If Parliament can say we now decide to oust the powers of the courts in any particular context,
then the continuing system of the rule of law can't continue. So it's a bit like the canon omnipotent god creator stone.
He cannot destroy question. You have to. You have to assume that God wants his own omnipotence to go on,
and you have to assume in a constitution that all the all the limbs of the Constitution are meant to keep rolling along.
And the minority judgements of which the assumptions was that was the most significant didn't agree.
The reason those three judges didn't agree with a majority, in essence, was, I think,
because they they thought that parliament was entitled to view the IPT as a sufficient judicial authority or a sufficient authoritative source.
And I think often in cases of this kind, they look at the people on these, on these bodies.
I remember being in Strasbourg, in the Big Brother watch case where Sir James Eadie,
who's the government's most senior counsel who's counsel in this case as well,
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.
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,
and it doesn't go down well in Strasbourg because people are looking at the structures.
I guess I'm sure they're very good and clever and distinguished people. But does this structure work in constitutional terms?
And I think the reason Lord Sumption thought that Parliament was entitled to limit the court's jurisdiction to consider errors, the IPT was.
In its own jurisdiction was because he did not think that ultimately this was a terribly or a wholesale exclusion of the supervisory jurisdictions,
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.
So that effectively, the ousted president truly asked the court's jurisdiction,
said Lord Khan was talked about that and said it is OK for parliament to do things that limit the court's jurisdiction.
For example, the usual limit for bringing a claim by way of judicial review is three months in relation to a planning decision.
It's six weeks. That's all right. It might mean it might cut down the circumstances in which and the procedure
through which you can go to court in quite a way that can be sometimes difficult.
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.
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.
What you're doing is wholly excluding the supervisory judgement of the High Court.
And ultimately, I think that the difference between Lord Khan was an assumption.
Here lies lies in their assessment of whether there was a wholesale ouster here.
That's my my perception of the matter and that Lord Sumption really doesn't think
it is that ouster because the IPT is effectively an alter ego of the High Court.
Thank you very much in detail. Jeff, here before. Thank you very much.
So I would like to speak about this important case within the broader context of the theme of this workshop,
as everyone else has, which is about the relationship between the courts, the executive and Legislature.
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.
So I think I might have sided with the dissent in this case, and I been a judge on it,
which might be contrary to the expectations of a number of people who who know me, including, probably most of all, Richard.
But I think also that even if the case were wrongly decided on the key point,
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.
So my view is that on the issue that the court decided affirmatively the first issue about how to construe this clause.
I think the court may have been wrong, but its judgement was perfectly reasonable.
The issue that it nearly decided that judges can put aside an act of parliament is different.
And I think it's more controversial and I'll focus as well on that case.
But my conclusion ultimately is that even on on that question, it would not have been a revolutionary judgement.
And this raises the question of how one ought to respond in a constitutional system if judgements on important questions that one disagrees with.
So I just want to go over some of the background features of this case its disposition,
some reflections on why I think its findings on the law are not even if you disagree with them or not,
particularly as controversial, perhaps as suggested by Richard,
and then talk about the politics of this judgement and how it relates to a written constitution.
So let me discuss the case in its basics.
It's been discussed a fair bit already, but essentially the issue is whether the clause in the statute that assists juries.
Judicial review should be read to exclude judicial review of the decision of the IPT in this case.
And I just want to back up and the slide to the previous slide, if I could.
Do you have to explain the substantive issue that gave rise to the proceedings?
So under this provision, this is the provision that gives power to the Secretary of State to issue an intercept warrant to allow essentially
the government to use bulk surveillance powers to it to monitor our communications on email and so on.
And the question that was brought to the IPT was how broad is the power here?
Can it? Is it narrow in the sense that the warrant has to specify a particular individual's particular property?
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,
national security or maybe even a narrower theme? It would nonetheless allow it to surveil an enormous number of people, tens of millions.
This question is a fundamental question of civil liberties under the Act.
It is provided that a decision on this question and its compliance with the European Convention on
Human Rights can only be determined in the UK by the Investigative Investigatory Powers Tribunal.
No appeal from that decision whatsoever to any other court in the UK.
That's what was substantively at stake for Privacy International.
They brought the case, saying that the secretary of State's interpretation is far too broad and should be narrower to the IPT.
The IPT ruled against Privacy International, and then they sought judicial review of that decision to the Supreme Court,
the Court of Appeal and then the Supreme Court. So if we can go back to the cross, absolutely.
So the question really is, does this clause preclude judicial review of that particular question?
And you can see why it's important to privacy international. So the case raised two fundamental issues.
The first was, can you read this clause in a way that would permit judicial review of that kind of decision?
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.
The question I just outlined previously.
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.
Could the court set it aside altogether? Could the court decide to effectively discipline a provision of an act of parliament?
And on that question, three of the judges were in favour, three were against and one reserve judgement didn't get any views.
So a majority of the court refused to find that that power existed in this case.
Right, so what was the reasoning and the disposition of the judges here on the first issue?
And I think it's important because there was some discussion about taking law seriously in the last discussion.
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.
For me, it was her main job. It's one of her jobs now is to explain these questions to judges.
But as I see it,
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
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.
And furthermore, that since the case of Anna's Minnick,
this distinction between jurisdictional errors and non jurisdictional errors of law was abolished.
There was a lot of discussion in the dissenting judgement that said, well, A. Minnick didn't intend to abolish that distinction,
and there was, but they wanted to to pretend that the distinction still existed.
There's a point in lurid assumptions judgement where he says, Well,
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
bench at the mine that this distinction between jurisdictional and jurisdictional errors is practically abolished.
That was confirmed in the case of Page, in the case of Rakhale Communications and others.
And this is how it's been taught in most of the law schools around the country that now that being the case,
it meant that following A. M. Any error of law was considered to go to jurisdiction.
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.
It wasn't a real decision, and therefore it never took place. And the ouster clause wouldn't fight to exclude it.
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,
they were following in the tradition of A. Minnick and the tradition of the cart.
And they were following the views of esteemed legal commentators who I'll get to in a moment now that the
the dissent took a different view and said the law is more nuanced than the majority has presented it.
In fact, in the case of A. Minnick, none of the judges said they wanted to dispose of this distinction between jurisdictional
and non jurisdictional errors that a number of the cases that came after a.m.
it was acknowledged that the court might allow the decision of an inferior court to
not be judicially reviewed when the inferior court had the features of a High Court.
They put emphasis on that. They said that all of the cases suggested that context was highly relevant.
And then they looked extensively at the context of the Regulation of Investigatory Powers Act.
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.
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.
That power had not been exercised here and that the phrase that is appears within parentheses,
including decisions as to whether the courts have jurisdiction.
The tribunal has jurisdiction that those very words were inserted by the draughtsman in order to get around the limit that sought to place.
So these were the reasons that were offered by law assumption and Lord Reid and I believe, adopted by Lloyd Wilson as well.
This is the disposition on on that that case.
I think on the narrow grounds that I've just outlined, I think probably the dissent is closer to the truer position,
if only because the the rule of the doctrine of parliamentary legislative supremacy is important in this picture.
It is a constitutional fundamental. And the majority position does come close.
I think in this case, it's all a matter of construction in this particular case to negating any legal effect of this provision.
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
saying that the majority judgement was reasonable and I'll come to that in a second.
Now, the second question. If you can't read this down, can the court set it aside altogether?
That's different. I mean, there's no question that that would create a fundamental departure.
An assertion of the power of the judges under the common law to set aside an act of parliament is plainly inconsistent.
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.
But I'll come to how we should react to that in a moment. Now, I said my reaction was.
Was probably that the dissent may have been right in this case, I know that's the view of Haley and others.
But I don't think that we should react with outrage for three key reasons here.
First is that there was a very plausible legal argument that supported the majority opinion.
A significant number of legal scholars thought the Court of Appeal decision was wrongly decided,
and these were not limited to those who had a pro court orientation in their legal theory.
So, for instance, the the excellent legal writer and constitutional theorist Adam Tucker was heavily critical of the Court of Appeal decision,
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.
Professor Paul Craig and Professor Jeffrey Jawad. And I'm not making an appeal to authority here,
but what I'm showing is that these three individuals are the authors of the three leading texts on administrative law,
the most authoritative sources to Smith Craig on administrative law and weighed in foresight.
Although Christopher Forsyth takes a different view now, I think that his predecessor took the view that as clauses were more or less unenforceable.
So there's plenty in the case law that supports the majority decision.
That's why I don't think that one can castigate it as some kind of judicial frolic in this particular case.
So to put the point, maybe a little differently if there was an error of law here.
It was an error that was within the jurisdiction of the Supreme Court to make.
The second point is that I think it's entirely wrong to see this issue as a turf war between the courts,
the between obstreperous judges on the one hand and government and parliament on the other.
So one thing that's been omitted from all the discussions we've seen in the cases so far is that the issue
of ouster clauses was an enormously significant issue in the early construction of the administrative state.
Lord Chief Justice Gordon Stewart wrote a series of articles in the early 1920s
that were serialised but then published as a book called The New Despotism.
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.
It attacked delegated legislation and it attacked the control by parliament of the jurisdiction of the courts.
So a committee of Parliament, the Committee on Ministers Powers, was formed the Donmar Committee,
and it reported in the early 1930s it was basically formed to investigate the claims that he had made about whether delegated
legislation and this gradual restriction of the powers of the courts were somehow unconstitutional and on delegated legislation.
They concluded that the practise was quite justifiable and Lord Hewitt had overreacted.
But on the issue of elster clauses, the committee was absolutely unequivocal that these were constitutionally offensive.
The kind of ouster clauses that we're looking at now. They were contrary to constitutional principle and that they should not be used.
The Committee on Ministers Powers was described by a contemporary commentator
as just the kind of committee that you would expect to have been appointed by
the Conservative Party of its views were effectively agreed by all the political
parties and all the branches of government that were prevalent at that time.
That was the last official quiet enquiry that was political in nature, as well as theoretical in nature about ouster clauses.
So I don't think that what came from A. medick onwards is just a turf war by the judges.
Third and lastly, one may say,
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.
It becomes impossible to do that.
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,
which was unequivocal in doing what it is, contended that this should have done,
and there is a huge backlash in Parliament and the government backed down.
So any government which wishes to in completely unequivocal terms, completely out of the power of the courts,
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.
So those are three reasons why I think the majority view as respectable. What about the politics of it, though?
Well, I've offered an explanation that sort of defends the case, but admits that it's doubtful.
So what do we do in this situation?
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.
I'm open to being persuaded that I'm wrong by the kinds of arguments that that Howard has mentioned.
I don't think that I'd be moving any closer to Richard's position,
but I ActionScript perhaps so the reason why I think that I I'm attracted in a way to the dissent,
even though I think in a different constitutional system, there's no doubt that this question should be decided by a court of law.
That goes all the way up to the Supreme Court. But why do I think here?
Why might I side with the dissent?
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.
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.
Normally, that warrant is uncontroversial because courts normally enforce statutory law or the bits of the common law,
which we've acquiesced in their application or because it arises from a written constitution.
But my view is that major constitutional shifts under a written constitution should be generally reserved for the
legislative organs of the state or for specially constituted constitutional organs like a constituent assembly.
So judges, I believe,
normally should not be effecting major shifts in the constitutional landscape unless the Constitution at issue is extremely rigid.
In that sort of case, I think you need a theory about when it becomes appropriate.
This is where Bruce Ackerman has tried to do in his work. But that's not the case here in the UK.
Now, why am I so concerned with the mandate and fidelity? And I think the concern is a principle that a practical one,
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.
The practical problem is that if judges are seen to exceed their mandate and there's a plausible case that they have.
Then what will happen will either be that politically,
people will discourage resort to law and to constitutionalism to resolve social problems, which I think would be negative.
Or the judicial appointments process will become corrupted and therefore public law will become corrupted.
And that's what I think would be wrong now applying those thoughts to the privacy international case.
I think that this kind of reasoning means that the law relating to the first issue how to construct the
clause was insufficient flux to say that there's nothing fantastic about this particular judgement.
Thank you. But on the second issue, if there had been a decision to decide the courts,
it decided to set aside the act of parliament entirely to say it is impossible for Parliament to oust the review using any terminology.
I think that would be a major constitutional shift and I would be against it.
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.
It was admittedly controversial, but I think it's wrong.
I think legislative intervention, select committee enquiries, resolutions of the House of Commons or Lords political and academic discussion.
That's the way to respond to that particular issue.
And I'd say woe to those who think that a constitutional [INAUDIBLE] for tat is the right way forward.
And I think I can borrow as I've wanted to do for 20 years.
The African proverb that when the elephants fight, it's the grass that suffers, and I have waited 20 years to say that.
The second point is to emphasise a certain irony, I think in the strong criticism of this judgement, which is that in my mind,
it's precisely the absence of a written constitution that makes this kind of move that is made by majority judges.
The move they didn't take even of setting aside an act of parliament somewhat plausible.
The basis of parliamentary legislative supremacy in this country is not legislative, it's not constitutional.
It's customary and customs can change within the system.
They change by some of the actors in the system, whether it's parliament,
as in parts of the European Communities Act or judges on a case like these propose a new change,
a new rule of recognition, a new constitutional understanding, and the rest either agreeing or acquiescing or disagreeing and rejecting it.
So the Common Law Constitution, the status of parliamentary sovereignty based on custom allows this kind of move,
I think in a way that a written constitution ironically wouldn't allow.
We're not straightforwardly allowed. Furthermore, a democratically enacted written constitution,
one that's flexible would allow us to have a more adult conversation about these kinds of decisions,
like we have with the Human Rights Act,
which I think are productive in a way that we can't when we're talking about the scope of judges to get judgement.
So I'll stop there. Thank you. Thank you very, very much indeed to all three of our panellists.
We have to be out of here at quarter past the hour. Exactly.
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.
And contrary to what some of her speakers have said, I think this is genuinely a case of where the law is right.
OK, you can take the literal reading of the statute as Lord Wilson does and pave the path for authoritarianism.
Or you can do something else. And both the majority and the minority reasons reason from the court case in different ways,
and particularly Baroness Hale's judgement and cart, where she says effectively the court is faced with an issue of principle.
And I think both of the decisions and the majority in the minority are principle for different reasons.
One stands by the principle that there simply cannot be a tribunal which develops
local laws that apply specifically to government agencies of a certain class,
particularly the intelligence agencies where the general law that applies to
you and I in terms of human rights and torts might do something different.
The minority, which I don't think this was brought perhaps enough and the discussion neither
the minority nor the majority think there is the clause is completely effective.
The minority simply thinks that we can trust.
We can have faith in parliament to reasonably allocate, not to reallocate a jurisdiction of supervision to a specific tribunal.
So I suppose in that regard, I see both political scepticism and political face on both sides and not the local law point,
a scepticism of parliament's authority to initially a particular class of government agencies from the general supervisory jurisdiction of the courts.
But picking up on Jeff's final comments about yes,
there is indeed the formulation of words which would make him more successful on the majority is quite clear on this.
But we see using the principle of in the Sims case that Parliament must squarely
confront the political cost of anything it does that violates fundamental rights.
The majority says they tried at one stage on the political cost was simply too high.
I think that actually puts a lot of faith in our political and legislative institutions.
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?
Thank you. I'm sorry to the remaining audience members who didn't have the opportunity to have the questions asked.
Could you please join me in thanking or three panellists for an illuminating perspective?