Of Clarity and Context: R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22

The United Kingdom Supreme Court handed down its decision in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 this morning. There are four judgments: a plurality judgment by Lord Carnwath (with whom Lady Hale and Lord Kerr concur) and dissenting judgments by Lord Sumption (with whom Lord Reed concurs) and Lord Wilson. There is much to trawl through — 254 paragraphs spread across 113 pages — and given the multiple judgments, the only thing that seems to have been decided conclusively is that the Investigatory Powers Tribunal is indeed subject to judicial review for error of law, notwithstanding the apparently clear ouster clause in s. 67(8) of the Regulation of Investigatory Powers Act 2000 (see earlier discussions, for example, here and here).

The judgments run all the way along the spectrum, from Lord Carnwath’s expression of doubt about the ability of Parliament to legislate to exclude judicial review to Lord Wilson’s apparent bafflement at the proposition that s. 67(8) was anything but pellucidly clear. There were two issues, one about the preclusive effect of s. 67(8) specifically, the other about Parliament’s general authority to exclude judicial review. What follows is a ‘hot take’, but already on a first and second reading, some interesting themes and tensions emerge.

What does it mean for statutory language to be “clear”, as in the proposition that Parliament can exclude judicial review where it “clearly” expresses its intention to do? For Lord Wilson, there was “no doubt” about the scope of s. 67(8):

In 1985 Parliament, including its drafter of the 1985 Act, was aware that its attempted ouster of judicial oversight in section 4(4) of the 1950 Act had failed. In the Anisminic case the majority of the appellate committee had used different terms to describe the sort of decisions of which judicial oversight survived the ouster. But they had been collected by Lord Diplock in [O’Reilly v Mackman] into one word, namely decisions made without “jurisdiction”. Lord Diplock had delivered his speech less than three years prior to publication of the bill which became the 1985 Act. Necessarily considered in their context, the meaning of the words in parenthesis in section 7(8) of the 1985 Act, now replicated in section 67(8) of the 2000 Act, is surely to encompass within the exclusion of judicial supervision all the decisions of the IPT in relation to its “jurisdiction”; and to ascribe to that word the strained extension of its effect adopted in the Anisminic case so as to cover ordinary errors of law as well, of course, as errors in the proper sense of it. The initial presumption that Parliament did not intend such an exclusion and the need in consequence for a strict construction of the subsection have to yield to what I consider to be the only reasonable meaning of its words, which is to the contrary (at paras. 223-224).

For the plurality, Lord Carnwath reached precisely the opposite conclusion, based on the same textual and contextual information:

Judicial review can only be excluded by “the most clear and explicit words” (Cart, para 31). If Parliament has failed to make its intention sufficiently clear, it is not for us to stretch the words used beyond their natural meaning. 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. (If so, as Lord Wilson observes, they would have gained support from the distinguished author of the notes to the 1985 Current Law Statutes.) But one is entitled to ask why they did not use more explicit wording. With O’Reilly v Mackman in mind, the natural focus of attention would have been, not on potential challenges to the tribunal’s own decisions “as to” jurisdiction, but on jurisdictional or legal challenges to its substantive decisions generally. A more explicit formula might perhaps have anticipated the extreme wording of [Clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003, noted at para. 101] excluding challenges to any determination or “purported” determination as “a nullity by reason of lack of jurisdiction, error of law, or any other matter”. The reason for not adopting that course may simply be that, as in 2003, it might not have been expected to survive Parliamentary scrutiny (at para. 111. See also Lord Lloyd-Jones at para. 165).

Lord Carnwath (para. 112) and Lord Lloyd-Jones (para. 165) were not impressed by the suggestion that the Tribunal needed to be immune from judicial review the better to perform its sensitive, security-related functions.

The difference between Lord Wilson and the plurality seems to lie in Lord Wilson’s scepticism about the alternative meanings that might be ascribed to s. 67(8). After all, Lord Carnwath had to give “some meaning” (at para. 228) to those notorious words in parenthesis. But Lord Wilson was unimpressed by the attempt to limit the scope of the ouster close to jurisdictional fact (at para. 228) and would not buy either an alternative formulation offered by Lord Sumpton (at paras. 231-232).

I suspect that deep philosophical differences may underlie what appears to be a dispute about the linguistic content of s. 67(8). For Lord Wilson (and we might tentatively and non-judgmentally call him a positivist), there is a fact of the matter about the meaning of s. 67(8) (as, indeed, there was about the meaning of the ministerial veto in Evans): in the circumstances, Parliament’s intention was clear, like it or lump it. Whereas for Lord Carnwath (and we might tenatively and non-judgmentally call him an anti-positivist), a clause such as s. 67(8) has to be embedded in a nest of existing legal norms and understandings which include, here, a strong presumption against the ouster of judicial review on issues of law. It is significant that Lord Carnwath perceived that the flaw in the argument in favour of the effectiveness of s. 67(8) was “that it treats the exercise as one of ordinary statutory interpretation, designed simply to discern ‘the policy intention’ of Parliament, so downgrading the critical importance of the common law presumption against ouster” (at para. 107). Respect for legislative intent required giving some effect to s. 67(8), but not necessarily the preclusive effect which would have walled off the Tribunal’s interpretations of law from judicial scrutiny.

Lord Sumption took a different view on the clarity issue, starting from the premise that “[t]he degree of elaboration called for in a statutory provision designed to achieve a given effect must depend on how anomalous that effect would be” (at para. 199). Ultimately, there was nothing constitutionally controversial about conferring upon the Tribunal “the adjudicatory powers which would otherwise be exercised by the High Court acting as a court of review” (at para. 200). Moreover, the general context of review of sensitive security decisions provided an “entirely rational reason, whose significance is apparent throughout the relevant parts of the Act, why Parliament should have wished to confine the examination of these matters to a secure Tribunal and to prevent resort to the High Court, whether by way of appeal or review” (at para. 204).

Interestingly, however, whilst I would have instinctively thought that Lord Sumption would lean more towards Lord Wilson’s view of the linguistic clarity of s. 67(8), he sought a “reconciliation” of s. 67(8) and the limits elsewhere in the Act on the Tribunal’s jurisdiction (at para. 211) and proved as unwilling as Lord Carnwath to countenance total exclusion of judicial oversight of the Tribunal, at least when it came to the principles of natural justice:

If, she said, section 67(8) excludes judicial review, then the Tribunal’s decisions could not be reviewed even if it embarked on a dispute which was not within its subject-matter competence, or was improperly constituted, or affected by the grossest bias. This submission would require us to take an all or nothing view of section 67(8) which I regard as wrong in principle. The process of construction involved in identifying a judicial body’s “permitted field” depends, as the House of Lords pointed out in Anisminic, on an analysis of the enabling legislation to ascertain the breadth of the interpretative power conferred on it. The legislation may be more prescriptive in some respects than in others. Or it may be silent on some points, thus implicitly leaving unaffected basic common law principles such as natural justice. The Regulation of Investigatory Powers Act 2000 contains express provisions governing the constitution of the Tribunal and its subject-matter competence. It contains rules governing the Tribunal’s procedure, and authorises the making of further rules by the Secretary of State. Nothing that I have said should be taken to suggest that breach of these requirements is unreviewable. The terms of the Act place them outside the Tribunal’s “permitted field”. The same is true of principles of natural justice (such as those relating to bias), so far as they are not modified in terms by the Act (at para. 205).

Lord Carnwath’s discussion of the second issue is quite fascinating and reveals an impressively contextual approach to the foundations of judcial review. What I take to be the prevailing (though not unanimously held) view in England of Anisminic and its progeny is that decisions tained by error of law are nullities, void and of no legal effect (see my sceptical comment here). For Lord Carnwath, however, “the discussion needs to move beyond the legal framework established by Anisminic,and the cases which followed it”, because although the nullity principle “is now unquestioned, its conceptual basis, 35 years on from O’Reilly v Mackman, remains obscure” (at para. 128). The better view (to which I subscribe) is that the consequences of illegality in any given case will depend on the striking of a balance between competing constitutional fundamentals:

…the courts have not adopted a uniform approach, but have felt free to adapt or limit the scope and form of judicial review, so as to ensure respect on the one hand for the particular statutory context and the inferred intention of the legislature, and on the other for the fundamental principles of the rule of law, and to find an appropriate balance between the two. Even if this was not always the way in which the decisions were justified at the time, it may be seen as providing a sounder conceptual basis. Thus in the planning cases, it having been accepted that the statutory grounds cover all the traditional ground of judicial review, there is no difficulty in holding that the six-week time-limit provides a proportionate balance between effective judicial review, and the need for certainty to enable such decisions to be acted on with confidence.That more flexible approach to the relationship between the legislature and the courts is in my view wholly consistent with the modern constitutional settlement…Against that background, the judgments of this court in Cart point the way to an approach which (pace Professor Forsyth – see para 98 above) is both pragmatic and principled. The critical step taken by this court in Cart was to confirm, what was perhaps implicit in some of the earlier cases, that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review. This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the 2005 Act), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected. (at paras. 131-132, my emphasis).

Here, in particular, there would be significant value to judicial review of the Tribunal’s interpretations of law: “The legal issue decided by the IPT is not only one of general public importance, but also has possible implications for legal rights and remedies going beyond the scope of the IPT’s remit. Consistent application of the rule of law requires such an issue to be susceptible in appropriate cases to review by ordinary courts” (at para. 139).

Yet there is something of a tension between Lord Carnwath’s contextual approach to the foundations of judicial review and his refusal to engage with the characteristics of the Tribunal which Lord Sumption (especially at paras. 196-205) and Lord Wilson (especially at paras. 245-252) (and the Court of Appeal) invoked in support of their conclusions on the effectiveness of s. 67(8). For does it not follow from a commitment to a contextual approach to striking a harmonious balance between the importance of judicial oversight of legal issues and respecting the primacy of Parliament in policy matters that one should look closely at the Tribunal’s capacity to secure the effective legal accountability of the security services? Otherwise one must rely on a stark distinction between “courts” and “other bodies of limited jurisdiction” which fits uncomfortably with the embrace of an avowedly contextual approach. Lord Carnwath’s conclusion that “[i]n all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law” would have been strengthened by greater engagement with the unique features of the Tribunal and how its existence might be thought to create a justifiable “channelling” of judicial review rather than its unjustifiable “exclusion”.

This content has been updated on May 15, 2019 at 12:27.

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