Courts can review internal market bill

Justice minister confirms that controversial law will not oust courts' jurisdiction

A government minister has confirmed that clause 47 of the United Kingdom Internal Market Bill does not oust the jurisdiction of the courts.

The bill, which comes before the House of Lords on Monday, has been heavily criticised because it would allow ministers to make regulations in breach of international law.

As I reported last month, a leading academic was asked whether the clause, originally numbered 45, amounted to an “ouster clause” — similar to the provision that the Supreme Court had found to be ineffective last year in a challenge brought by Privacy International.

Alison Young, professor of public law at the University of Cambridge, said the clause was “even worse”. As she explained, an ouster clause acknowledged that ministerial behaviour might be unlawful but attempted to prevent the courts from ruling on the issue. This clause went further by simply deeming the behaviour lawful.

Since then, an additional provision has been added to stop courts in the UK extending the time limits during which the regulations can be challenged through judicial review, or its equivalent in Scotland. That must be an implicit acknowledgment by the government that regulations made under earlier clauses are subject to judicial review. But some senior legal figures still regard the bill an attempt to oust the jurisdiction of the courts.

Answering a debate in Westminster Hall this morning initiated by the Scottish National Party MP Joanna Cherry, the justice minister Alex Chalk (pictured) said:

There is nothing in the relevant sections that seeks to oust completely judicial review. Indeed, if a challenge were brought on the basis of procedural impropriety or all the other familiar grounds, those are not ousted.

This is good to hear. But it seems hard to square with provisions that the two earlier clauses, and regulations made under them, are to have effect ‘notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent’ — which includes “any other legislation, convention or rule of international or domestic law whatsoever”.

A similar point was put to Chalk’s boss, the lord chancellor Robert Buckland QC, by Lord Pannick QC when Buckland gave evidence to the House of Lords constitution committee this morning.

Buckland confirmed that the bill was not intended to oust judicial review. But he seemed unable to explain the inconsistency raised by Pannick.