Ousting the courts won't work

At high-level webinar, QC says parliament cannot exclude judicial review

Lord Pannick QC, the barrister who defeated the government in the two case he argued for Gina Miller, has predicted that a key clause in the government’s internal market bill will not succeed in ousting the jurisdiction of the courts.

Clause 45 of the bill says that regulations to be made by ministers “are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law”.

The bill defines relevant law to include “any … legislation, convention or rule of international or domestic law whatsoever, including any order, judgment or decision of the European Court or of any other court or tribunal”.

Pannick (pictured) said he thought that clause would receive very close attention in the House of Lords:

Does it really mean to exclude judicial review of a regulation because, for example, it lacks certainty; or it discriminates unreasonably; or it purports to act retrospectively; or it purports to impose criminal sanctions; or the minister has acted for an improper purpose? Suppose he gives specially favourable terms to companies owned by large donors to the Conservative Party. Is judicial review really intended to be excluded in all circumstances? I personally would be very surprised if a court looking at such a clause accepted such a conclusion.

Pannick acknowledged that a court would reject a challenge brought on the basis that regulations breached international law or treaties signed by the UK. But he questioned whether the regulations would succeed in excluding all attempts at challenge.

Giving judgment in 2011 in a case called Cart, Lady Hale had approved an earlier ruling in a lower court by Lord Justice Laws. She said:

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 . . . The requirement of an authoritative judicial source for the interpretation of law means that parliament’s statutes are always effective; . . .

Pannick said he hoped the prime minister and those advising him would have regard to what the judges had said in this case. He went on:

I’m sorry that Lord Keen has been put in the position he’s been in but I’ve no doubt he was right to resign. And I’m very sorry that the lord chancellor and the attorney general have not thought it appropriate to advise the prime minister that the provisions of this bill are unconstitutional and they are a breach of the rule of law.

Pannick was speaking yesterday at a webinar for members of the Constitutional and Administrative Law Association, ALBA. I also spoke and was invited to report the event.

Earlier in the discussion, Alison Young, professor of public law at the University of Cambridge, had been asked whether clause 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.

Young said that clause 45 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. Clause 45 went further by simply deeming the behaviour lawful. “I've come up with various ways in which I think you might be able to get around it,” she added. But she was saving those for later.

The webinar, originally scheduled for April, had been arranged to mark publication of my book Enemies of the People? Some of the cases I discuss in my book were explored by the panellists, who included the former Conservative attorney general Dominic Grieve QC and Lord Neuberger, who ruled against Grieve in 2015 in a case called Evans.

Rob Evans, a reporter on the Guardian, had made a request under the Freedom of Information Act 2000 to see letters written by the Prince of Wales to ministers in Tony Blair’s government. The Upper Tribunal — a judicial body with the same status as the High Court — ordered the government to disclose any that could be regarded as advocacy correspondence. Instead of appealing, Grieve used powers in the 2000 act to issue what amounted to a veto. A majority of the Supreme Court, led by Neuberger, overturned it.

Grieve, a member of David Cameron’s government, told us that the attorney general is the only minister allowed to see papers from a previous administration. It was the Labour government that had introduced the Freedom of Information Act and it was that government which had refuse to disclose Prince Charles’s letters.

Grieve said he would have defended the case differently. But he was not surprised to find that the Supreme Court took a dim view of his ministerial veto:

I think the Supreme Court was appalled and, I have to say, actually probably understandably appalled, that parliament should have given a minister of the crown the power to override the decision of a superior court of record in this fashion.

But that, he explained, was never meant to happen. The legislation had been “very poorly thought through by Labour”:

The original intention … was that actually the Upper Tribunal was … going to be asked to come up with a view which … was merely advisory on government… Interestingly, there was some pushback in parliament from that as the bill went through. And it was in order to compromise that the Labour government then came up with this hybrid idea that the decision would be binding; but there was an executive override about it… I don’t think anybody either in the Commons or indeed in the Lords picked up the oddity of what we were doing; and the extent to which — when you’re dealing with these magical things like separation of powers and the authority of courts — we were intruding into a space where, if you were to apply some philosophical logic, we probably ought not to have gone… And I’m quite sure it wasn’t parliament’s intention to precipitate such a confrontation.

Explaining his reasoning yesterday, Neuberger stressed that the Supreme Court had not criticised Grieve personally:

Our decision was simply that this was something which, under the legislation, he couldn’t do. It raised a very difficult point — as the divisions between members of the court showed. I quite accept that, if you read the act literally, its effect was that the attorney general could override the Upper Tribunal. The majority’s problem with that was ultimately that the idea that a member of the executive could overrule a court of record with the same status as the High Court was such an astonishing conclusion — one which, in the words of Lord Templeman, took one back to the days before the Civil War… And ultimately … the issue was whether the words in the statute were sufficiently clear to achieve this end… Lord Wilson and Lord Hughes thought they were; and the majority of us thought they should be given a very significant gloss or cutting down.

There was much discussion of Pannick’s two recent high-profile cases in the Supreme Court. Miller 1, decided in 2017, was the ruling that Brexit could not be triggered without legislation, and Miller 2, decided last year, was the ruling that parliament could not be prorogued (suspended) for as long as Boris Johnson had wanted.

Young rejected claims that Miller 1 was an example of judicial activism:

This isn’t the courts ultimately having the final say. This is the courts ultimately allowing parliament to have the final say. And, for those reasons, I don’t think Miller 1 is some kind of unfair, unconstitutional power grab. It’s a very important case, deciding important constitutional issues, in highly tense unusual circumstances that ultimately gave the power to parliament and not to the courts.

And Neuberger thought the same could be said for Miller 2, decided after he had retired. First, though, he dealt with the government’s claim that there was no basis on which the courts could interfere with a decision to prorogue parliament:

I think the pragmatic answer to that is that it couldn't possibly be right. Because as the Supreme Court pointed out, if the prime minister turned up with a piece of paper, proroguing parliament for a year because the Queen had been so advised, what could be done about it? Parliament couldn’t refuse to be prorogued because, on the prime minister’s … case, it had been prorogued. And the executive clearly wouldn’t do anything about it because it had effectively prorogued parliament. The only organisation that could do anything about it was the courts. And of course, it is when there is a potential for friction between parliament, the legislature and the executive — the two other branches of government — that the courts come into play in order to decide what the law is.

The two Miller cases led to similar misconceptions, Neuberger explained:

Miller 1 was what caused the infamous headline, which now finds its way to Joshua’s book, Enemies of the People? And there were heavy overtones of that in relation to Miller 2 … which is not only sinister, but almost laughably ignorant. Because, of course, in both Miller 1 and Miller 2 the courts were standing up for parliament; standing up for democracy; standing up for the people against an over-mighty executive. And far from being the enemies of the people, in each case the courts were the friends of the people, standing up for democracy.

Neuberger then dealt with the government’s claim that the courts could not review the prorogation of parliament because it involved the exercise of prerogative powers. That was “laughably out-of-date and well established to be wrong”:

What the courts can’t do is to get into political questions. But the mere fact that the decisions involve politics can’t possibly mean that the courts can’t get involved; otherwise, there’d be hardly any issues which the court could decide. What was made clear was that the courts can decide whether what was done was outside the boundaries of the prerogative. And the trouble for the government was that, on the evidence before the court, the six or seven week, prorogation was far longer than was needed.

The meeting was chaired by Vikram Sachdeva QC, who chairs ALBA and who is also on a panel reviewing administrative law chaired by Lord Faulks QC. The panel says it is particularly interested in “any notable trends in judicial review over the last thirty to forty years. Specifically, the panel is interested in understanding whether the balance struck is the same now as it was before, and whether it should be struck differently going forward.”

Responding to that question yesterday, Grieve said there had been an increase in delegated powers over the past 40 years. That and the Human Rights Act had led to greater scrutiny of decision-making:

But … I don’t think that we are suddenly moved into an era where the judiciary has set itself sort of almost wilfully on the path of interference and confrontation with executive action… Because there are many more claims being made … that imposes a greater burden of government... Many of these claims don’t succeed… Part of the problem with the government is not so much that they’re losing cases, but they just get rather fed up with the sheer burden of having to process and deal with a high volume of cases. And that’s where the irritation sets in.

Pannick offered other reasons for the increase in judicial review claims over the past 40 years:

One … is that this is a less deferential society than it was 40 years ago. The other is that there’s greater knowledge of judicial review… and the Supreme Court judgments in Miller 1 and Miller 2 demonstrate the importance of the value of transparency. People know that there are independent courts that will hear their complaints.

Nobody accepted the assertion, made by some campaigners, that the Supreme Court was more interventionist than the appellate committee of the House of Lords it had replaced in 2009. And Young, in agreement with the other panellists, believed that moving the final court of appeal to its own building had led to a number of improvements:

One of the big advantages of the move has been not just … to make it very clear that this is an independent court in a separate building but also the way in which, in Miller 1 and Miller 2 in particular, you had the whole publicity, the whole “televisation” of the judicial processes. Often you get people saying: well, this isn’t very fair; who’s judging the judges? The answer to that is the people are judging the judges.

And parliament remains supreme, Neuberger pointed out:

If parliament doesn't like a decision of a judge can pass legislation overruling it, because statutes … are writ in stone. They’re not judicially reviewable. So parliament has the last word.

But I shall give the last word to Pannick. He said any government that thinks it

desirable to reduce the scope of judicial review should bear in mind that it is not going to be in office permanently. The other side are going to have a go, and they are going to make decisions that people will say are an abuse of power and unreasonable. And it’s highly important that the protections remain in place for all governments — not just for this one.

I agree.