Very interesting discussion last night organised by the Melbourne University Law School between Justice Debbie Mortimer of the federal court and David Feldman, a visiting law professor from Cambridge, titled “Limitations on Judicial Review – Where To From Here?”
Not surprisingly, they paid a lot of attention to last month’s decision of the British supreme court (Miller/Cherry), which voided Boris Johnson’s attempt to prorogue parliament. But they also looked at another judgement, which I had not read: the Privacy International case, decided earlier this year.
It is much more heavy going; I do not recommend it for the general reader. But like Miller/Cherry it represents a milestone in the expansion of judicial review.
On the surface, the issues in Privacy International were quite different. They concerned statutory interpretation, not prerogative powers, and they did not (at least directly) involve the political acts of the executive. They also resulted in a divided court, not the unanimous 11-member bench of Miller/Cherry. But they shared the same concern with fundamental constitutional principle – and particularly parliamentary sovereignty, which both cases took, somewhat paradoxically, to expand rather than constrain the role of the courts.
In Miller/Cherry, the precedents went back to the Case of Proclamations of 1611. Privacy International doesn’t reach back that far, but it relates to one of the most famous cases of the eighteenth century, Entick v Carrington, where in 1765 Lord Camden ruled that general warrants – warrants to search for anything relating to some matter, rather than confined to a particular person or premises – were illegal.
The Privacy International litigation involved a claim that British intelligence services were falling foul of that prohibition by relying on “thematic” warrants to conduct “computer network exploitation”. But the supreme court wasn’t called on to decide that question; it was adjudicating on the prior issue of whether the relevant supervisory body, the Investigatory Powers Tribunal, was subject to judicial review.
By a four to three majority, the supreme court found that it was. All four members of the majority, plus two of the three dissenters, were also party to the judgement in Miller/Cherry.
The link between the two is the idea of parliamentary sovereignty. If parliament is to do its job, said the court in Miller/Cherry, there must be limits on the power of the executive to prevent it from sitting. And if parliament has entrusted a tribunal with certain powers, then there must, said the court in Privacy International, be some way of ensuring that it has not exceeded them.
As Lord Lloyd-Jones, concurring in the judgement, put it, “it is a necessary corollary of the sovereignty of Parliament that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament.”
Countries with a written constitution have an easier time of these issues. As Mortimer pointed out last night, the Australian high court has no difficulty in striking down clauses that attempt to oust the jurisdiction of the courts, relying on the constitution’s provision for the separation of powers.
But in Britain the supreme court was faced with a statute that, on the face of it, appeared to confine review to the IPT and exclude the courts. It could not say that the statute was unconstitutional, so instead it turned the doctrine of parliamentary sovereignty around. Parliament, it said, must be presumed not to be willing to allow errors of law to go uncorrected – unless it says so in the clearest possible terms.
Both cases are part of an ongoing attempt to rein in executive power, and both show courts that are highly resistant to being told that there are things they may not interfere with.
In the long run, that’s probably no substitute for a written constitution. Johnson is in an unusually week position because he has no parliamentary majority, but a normal government with support in parliament can legislate to override the courts. Only political pressure can prevent it.
As Lord Carnwath put it for the majority in Privacy International:
It may well be that the promoters of the 1985 Act thought that their formula would be enough to provide comprehensive protection from jurisdictional review of any kind. (…) But one is entitled to ask why they did not use more explicit wording. … The reason for not adopting that course may simply be that … it might not have been expected to survive Parliamentary scrutiny.
The need for that scrutiny has never been stronger.
The World is Not Enough 
This is the ‘privative clause’. I wonder how Parliament could be any more clear?
‘Except to such extent as the Secretary of State may by order otherwise provide, 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 questioned in any court.’
The problem with the courts’ aggressive extension of administrative review is that, rather than enabling parliament and weakening the executive, it frequently involves weakening both the executive and legislature, with only the courts and those able to engage in the costly practice of seeking judicial review (either powerful, organised interests; or the so called ‘public interest’ litigators) benefiting, while the idea of electoral accountability is attenuated. It involves the courts in overtly political judgments (something of which, for several hundred years, they had been wary, rightly in my view), and, as was shown in the prorogation matter, renders all executive decision-making tentative. The course of that matter – which involved intermediate courts holding views directly contrary to those arrived at by the Supreme Court – should be a warning to those who conceive that court has ‘broken new ground for the rule of law’. It is a zero sum, if not negative sum, game from a perspective of liberal democracy and the (traditional understanding of) rule of law.
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That clause might look clear, but only if you don’t take into account the legal background. A long line of cases, starting with Anisminic in 1968, had made it clear that words like “determinations” or “decisions” did not cover cases where there was an error of law, so no valid decision had been made. And the drafters of that clause were well aware of that. If they had really wanted to exclude judicial review entirely, they could have said something like “decisions or purported decisions” – but as the court said, they may have thought that was politically impossible.
Instead, all they did was add the words in brackets: “including decisions as to whether they have jurisdiction.” The question in Privacy International was whether that made any difference; four judges said it didn’t, two thought it did, and the seventh apparently thought Anisminic was wrongly decided in the first place.
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