Don’t mess with the judges

They know which reforms work and which won’t

A former justice of the Supreme Court has told the government it has put forward “muddled and inconclusive” reasons for seeking to limit the powers of the courts.

Lord Carnwath, who retired in 2020 after eight years on the UK’s highest court, also accused the lord chancellor, Robert Buckland, of misquoting Lady Hale in support of his proposed reforms.

But Carnwath welcomed recommendations by Lord Faulks QC that would limit the number of challenges in immigration cases and give the courts more flexible remedies when granting judicial review.

Responding to the Faulks review of administrative law last month, Buckland issued a consultation paper “on measures that were not recommended by the panel but would complement their main proposals”. Carnwath was responding to this public consultation, which closes tomorrow.

In a foreword to his consultation paper last month, the lord chancellor said:

I want to use these reforms to restore the place of justice at the heart of our society by ensuring that all the institutions of the state act together in their appropriate capacity to uphold the rule of law. That means affirming the role of the courts as “servants of parliament”, affirming the role of parliament in creating law and holding the executive to account, and affirming that the executive should be confident in being able to use the discretion given to it by parliament.

Although no source was given for Buckland’s assertion that the courts are the “servants of parliament”, paragraph 26 of his consultation paper attributes the phrase to a former president of the Supreme Court:

It cannot be emphasised enough that parliament is the primary decision-maker here and the courts should ensure they remain, as Lady Hale put it, “the servant of parliament”.

But it was not the courts she was referring to her submission to the Faulks review — as paragraph 18 of the consultation paper confirms. Hale’s evidence, subsequently published, was this:

In the vast majority of cases, judicial review is the servant of parliament. It is there to ensure that public authorities at all levels act in accordance with the law which parliament has laid down. In only a very few cases does it operate to ensure that public authorities act in accordance with the common law. 

As Carnwath explains:

It is clear that she was simply discussing the function of judicial review, in serving parliament by giving effect to the law made there, rather than making any general statement about the constitutional relationship of parliament and the courts. As to that, Lady Hale has made her position quite clear, for example, in a recent judicial statement (adopting words of Lord Justice Laws):

“The rule of law requires that statute law be interpreted by an authoritative and independent judicial source: “…the need for such an authoritative judicial source cannot be dispensed with by parliament. This is not a denial of legislative sovereignty, but an affirmation of it…”

Carnwath added:

The courts are not mere servants of parliament but essential partners in the constitutional balance that underlies the rule of law.

Ouster clauses

An ouster clause is a provision in an act of parliament that is intended to oust the jurisdiction of the courts in some way. It’s designed to make a decision non-justiciable, so that the courts cannot judicially review it.

But judges often find ways round these provisions. As the consultation paper says, the courts tend not to give effect to ouster clauses that purport to oust their jurisdiction entirely. The government is looking for ways of making ouster clauses more effective.

This is what Carnwath has to say about its proposals:

The government’s apparent wish to increase its power to “oust” the jurisdiction of the courts might have been a cause for concern if the discussion were not so muddled and inconclusive.

Although this is described in the lord chancellor’s foreword as one of the most “pressing” problems, the ensuing discussion fails wholly to explain, or to give practical examples of, the perceived problem or its urgency, nor to show how legislative intervention would improve matters.

It also seems to be based on the wholly unsupported premise that the courts’ “doctrine” has led to “many ouster clauses not being given effect to”.

After putting forward a number of suggestions for reform, the government asks a question:

Would the methods outlined above, or a different method, achieve the aim of giving effect to ouster clauses?

Carnwath’s answer is uncompromising:

The simple answer is that the government has failed to identify a problem requiring legislative intervention. No case has been made for pursuing any “aim” of giving effect to ouster clauses, beyond the principles already established by the case-law. Nor have any suitable legislative “methods” been identified for doing so.

In the rare cases where a need to limit the ordinary jurisdiction of the courts can be made out, and provided the extent of the necessary limitation is clearly identified and the purpose understood, there should be no difficulty in drafting an appropriate clause, and no reason to think that the courts will do other than give it effect.

Explaining his thoughts in more detail, Carnwath says the only specific area in which it is suggested that the courts may have gone beyond their proper role is in respect of the “principle of legality”:

However, no modern examples are given of the courts overstepping the “appropriate bounds”. It seems that the only two cases which could be found to illustrate this point date from 1925 and 1983… I doubt if any serious observer would suggest that these are in any way typical of the approach of the modern courts.

The consultation paper cites a case decided in 2019 that turned on the validity of an ouster clause. Carnwath was one of the judges in the majority who decided that parliament had not made its intentions sufficiently clear for the clause to be effective and for decisions of the Investigatory Powers Tribunal to be immune from judicial review.

This is what the consultation paper says about the case:

In Privacy International, the core underlying issue was the interpretation of section 5 of the Intelligence Services Act 1994. The concern, which led the majority to construe the ouster clause as they did, was that if judicial review was not available this would run the risk of creating a “local law”, and that this was contrary to the rule of law.

There are a number of points to make in response to this. First, “local laws” do already exist and have been upheld by the courts. Second, “local laws” did exist in the past prior to the Judicature Acts: the common law courts had no jurisdiction over matters of equity and vice-versa. It would be an odd thing to do, but parliament could, consistently with the rule of law, re-create separate courts of law and equity. Third, it is the case that the widespread use of arbitration in certain legal fields, such as maritime salvage, has de facto created “local laws” and while this situation has been deplored by some, no one has suggested that arbitration agreements should not be upheld by the courts as a result.

Nonetheless, the government agrees that the creation of “local laws” in a way which is not intended by parliament is undesirable. The government is therefore interested in consultees’ thoughts on how the “unintended local law” problem could be resolved while still giving effect to ouster clauses. One possible solution might be to clarify that the High Court retains the power to issue, in appropriate cases, a declaration about the correct interpretation of the law. 

And this is Carnwath’s devastating response:

As a commentary on the leading Supreme Court authority on the issue, I find this frankly bizarre. The judgments in that case (of one of which I was the author) must of course stand on their own merits. However this section appears to have been written without any serious attempt to understand the issues in the case or the reasoning of the court.

Concerns about “local laws” were not a significant aspect of the reasoning of the majority. That turned on the construction of the relevant ouster clause, against the background of the binding authority of Anisminic on a very similar clause, not on any more general concern about “unintended local laws”.

Equally bizarre is the reference to examples of “local laws” in other fields (university regulations, arbitration, common law/equity). As far as I am aware, no serious commentator has suggested that such examples have any conceivable bearing on the subject matter of judicial review, concerned as it is, not with relations between private parties or institutions, but with the relationship between citizens and the state.

Cart overturned

Following a decision of the Supreme Court in R (Cart) v Upper Tribunal in 2011, it has been possible to seek judicial review of a decision by the Upper Tribunal to refuse permission to appeal against a decision of the First-tier Tribunal. Because this extended process had led to relatively few errors of law by the First-tier Tribunal being identified and corrected, the Faulks panel recommended discontinuing the practice — in other words, overturning the Cart judgment by statute.

Carnwath welcomed this proposal, which he had recommended in a lecture last December. He had been the senior tribunals judge from 2005 to 2012 and said this would restore the position to what had previously been intended:

Having been closely involved in the preparation of the relevant legislation, I can confirm that our intention was that the Upper Tribunal should, within in its specialist sphere, have the status of the High Court and thus be immune from review by the High Court. Our expectation, on the basis of the modern textbooks and authorities, was that designation as a superior court of record would have that effect.

Flexible remedies

Carnwath had also supported giving judges more flexible remedies in his lecture. Commenting on the Unison judgment, in which employment tribunal fees were declared unlawful, he said:

As a former senior president responsible for helping to regulate business in the employment tribunals, I might have asked for submissions on the possibility of a form of order which allowed time to work out the consequences and limit uncertainty, pending the development of a new and acceptable structure.

Comment

The position taken by Carnwath, Hale and Lord Kerr in the Privacy International case was attacked at the time by Professor Richard Ekins of the Judicial Power Project. He said:

These three judges have asserted an intention in the future openly to disobey statute. Any judge who acted on this intention would warrant removal from office in accordance with the terms of the Senior Courts Act 1981.

In my book Enemies of the People?, I responded:

Carnwath, Hale and Kerr were not refusing to give effect to a future ouster clause. They were simply predicting that they might not interpret a clause in the way that lawyers such as Ekins were arguing for. Nor were they ignoring the intention of parliament, as other critics had complained. Carnwath’s formulation required the courts to take account of a clause’s purpose and statutory context.

Carnwath now agrees:

It is hard to see anything in [the Privacy International] judgments, properly understood, which would exclude effect being given to a suitably drafted ouster clause, provided its purpose and effect are justified and understood.

In his response to Buckland’s consultation, Carnwath congratulated Faulks — a practising QC — and his panel of distinguished lawyers for “completing, in a remarkably short time, and after wide-ranging consultation, a thorough and objective account of the modern practice of judicial review”.

By contrast, the government’s response was written in-house by officials at the Ministry of Justice. Carnwath, a former chairman of the Law Commission, suggests that Buckland’s department does not have the intellectual clout to put together a coherent plan for reform.

As the former Supreme Court justice observes, “if the lord chancellor has serious practical concerns on law reform issues not adequately addressed by the Faulks review, then the obvious course is to refer them to the Law Commission, which (unlike the ministry) has the independence, authority and legal expertise to carry out a proper study and propose appropriate solutions”.

Update: Professor Mark Elliott has picked up and expanded on Carnwath’s comments in the final part of his own response to the consultation paper.

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