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> It cannot simply be overruled by an act of parliament Yes it can. Parliament is sovereign: it can overrule anything it likes with legislation. There is no hi

by Veen 6y ago

> It cannot simply be overruled by an act of parliament Yes it can. Parliament is sovereign: it can overrule anything it likes with legislation. There is no higher authority than parliament in the UK, not even the Supreme Court. Also, the High Court didn't rule it unconsitutional, it ruled it contrary to common law. The UK is not the US. The executive (Cabinet etc) cannot simply ignore the ruling, but they might be able to get legislation through Parliament to explicitly allow general warrants. https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html > That principle means that the courts will, when interpreting the provisions of a statute, presume that Parliament did not intend to legislate in a manner which overrides fundamental common law rights. The common law has an aversion to general warrants that leave significant matters of judgment and discretion to the person executing the warrant rather than to the person legally or constitutionally responsible for issuing it. > In view of the importance of the constitutional principle that there can be no interference with property without clear and specific legal authorisation, the words of an enactment must be unambiguous before the court may interpret Parliament as intending to override rights. There are no such unambiguous words in section 5. The national security context makes no difference as otherwise the courts would sanction wide powers to override fundamental rights.

pmyteh 6y ago
This is absolutely true in theory, but in practice Parliament can find it... a little difficult to legislate so as to overrule some exercises of judicial power. This case touches on one of them: the Act establishing the Investigatory Powers Tribunal contains an ouster clause which is expressed as preventing any of its decisions being appealed or questioned in another court (subject to exceptions which don't apply here). And yet, here is the High Court hearing a judicial review of one of the IPT's decisions. The courts don't like these jurisdiction-stripping ouster clauses, for good reasons - if someone can't be reviewed, what is to stop then committing abuses under colour of law? In Anisminic (1969) the House of Lords ruled that an ouster clause didn't actually apply in a given case, and that decision has been followed and expanded in various cases to this day. Including in this case - today's judgment was given after the Supreme Court ruled the IPT ouster was ineffective for similar reasons. I'm not aware of any copper-bottomed legislative wording that has been accepted to show that Parliament really does intend to oust jurisdiction, so in practice the courts can and do rule 'they can't really have meant this' even against the express intentions of Parliament.
- simonh 6y ago
  Ansiminic (1969) is really interesting. Section 4(4) of the Foreign Compensation Act 1950 stated: “The determination by the commission of any application made to them under this Act shall not be called into question in any court of law” However the House of Lords determined that the ouster clause exempting the determination from legal review did not apply, as there was no valid determination in the first place. So essentially if the tribunal were to make a determination consistent with the law then yes that wouldn't be subject to judicial review, but if they make an error of law then their determination is not valid and therefore is subject to review. Take that, parliamentary overreach!
  - pmyteh 6y ago
    Yes! When I see US jurisprudence getting tied up in knots about whether given rules 'are jurisdictional' or 'are merely mandatory' I can really see the benefit of the decision the HoL took in Anisminic. And it does permanently prevent flagrant abuse of judicial power by lower court judges. But the legal fiction of parliamentary sovereignty does feel a little more fictional when you read that case. (Of course, they were careful to make clear that Parliament was, in fact, still sovereign, and given a sufficiently expressed will, etc. etc. But in practice...)
  - tomatocracy 6y ago
    This has led to ever more elaborate ouster clauses eg amending the wording to something like "determination or purported determination". It's been an ongoing game of legal sophistry. It's quite amusing really. This is a recent attempt (subsequently dropped I think as the politics moved on): https://ukhumanrightsblog.com/2020/10/15/the-uk-internal-market-bill-mother-of-all-ouster-clauses-ronan-cormacain/ https://ukhumanrightsblog.com/2020/10/15/the-uk-internal-mar...
    - Samis2001 6y ago
      Even broader is the one in the drafted repeal of the Fixed-Term Parliaments Act, the scope of (b) being particularly worrying - what exactly counts a related purported decision? 'A court of law may not question— (a) the exercise or purported exercise of the powers referred to in section 2,(b) any decision or purported decision relating to those powers, or (c) the limits or extent of those powers.'

by Veen 6y ago

pmyteh 6y ago

This is absolutely true in theory, but in practice Parliament can find it... a little difficult to legislate so as to overrule some exercises of judicial power. This case touches on one of them: the Act establishing the Investigatory Powers Tribunal contains an ouster clause which is expressed as preventing any of its decisions being appealed or questioned in another court (subject to exceptions which don't apply here). And yet, here is the High Court hearing a judicial review of one of the IPT's decisions. The courts don't like these jurisdiction-stripping ouster clauses, for good reasons - if someone can't be reviewed, what is to stop then committing abuses under colour of law? In Anisminic (1969) the House of Lords ruled that an ouster clause didn't actually apply in a given case, and that decision has been followed and expanded in various cases to this day. Including in this case - today's judgment was given after the Supreme Court ruled the IPT ouster was ineffective for similar reasons. I'm not aware of any copper-bottomed legislative wording that has been accepted to show that Parliament really does intend to oust jurisdiction, so in practice the courts can and do rule 'they can't really have meant this' even against the express intentions of Parliament.

simonh 6y ago
Ansiminic (1969) is really interesting. Section 4(4) of the Foreign Compensation Act 1950 stated: “The determination by the commission of any application made to them under this Act shall not be called into question in any court of law” However the House of Lords determined that the ouster clause exempting the determination from legal review did not apply, as there was no valid determination in the first place. So essentially if the tribunal were to make a determination consistent with the law then yes that wouldn't be subject to judicial review, but if they make an error of law then their determination is not valid and therefore is subject to review. Take that, parliamentary overreach!
- pmyteh 6y ago
  Yes! When I see US jurisprudence getting tied up in knots about whether given rules 'are jurisdictional' or 'are merely mandatory' I can really see the benefit of the decision the HoL took in Anisminic. And it does permanently prevent flagrant abuse of judicial power by lower court judges. But the legal fiction of parliamentary sovereignty does feel a little more fictional when you read that case. (Of course, they were careful to make clear that Parliament was, in fact, still sovereign, and given a sufficiently expressed will, etc. etc. But in practice...)
- tomatocracy 6y ago
  This has led to ever more elaborate ouster clauses eg amending the wording to something like "determination or purported determination". It's been an ongoing game of legal sophistry. It's quite amusing really. This is a recent attempt (subsequently dropped I think as the politics moved on): https://ukhumanrightsblog.com/2020/10/15/the-uk-internal-market-bill-mother-of-all-ouster-clauses-ronan-cormacain/ https://ukhumanrightsblog.com/2020/10/15/the-uk-internal-mar...
  - Samis2001 6y ago
    Even broader is the one in the drafted repeal of the Fixed-Term Parliaments Act, the scope of (b) being particularly worrying - what exactly counts a related purported decision? 'A court of law may not question— (a) the exercise or purported exercise of the powers referred to in section 2,(b) any decision or purported decision relating to those powers, or (c) the limits or extent of those powers.'