The UK’s latest on Parliament’s power to enact privative clauses
Privacy International challenged the lawfulness of certain warrants issued by the Secretary of State to authorise computer hacking by a government intelligence service. Privacy International commenced proceedings before the Investigatory Powers Tribunal (IPT), which is a specialist tribunal which examines the conduct of intelligence services. IPT was established under the Regulation of Investigatory Powers Act 2000 (UK) (RIP Act).
IPT determined a preliminary question of law concerning the lawfulness of the warrants. Privacy International then sought to bring judicial review proceedings to quash IPT’s decision.
The Divisional Court and Court of Appeal held that a privative clause in the RIP Act, section 67(8), prevented judicial review of the IPT’s decision.
The privative clause in section 67(8) read:
Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.
The two issues on appeal to the United Kingdom Supreme Court were:
- Whether the privative clause ousted the supervisory jurisdiction of the High Court to quash a judgment of the IPT for error of law (the statutory interpretation issue).
- Whether, and, if so, in accordance with what principles, Parliament may by statute oust the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction (the constitutional issue).
A majority of the Supreme Court allowed the appeal, holding as a matter of statutory interpretation that the privative clause in the RIP Act did not oust the supervisory jurisdiction of the High Court for errors of law.
The plurality judgment was written by Lord Carnwath (with whom Lady Hale and Lord Kerr agreed). Lord Lloyd-Jones wrote a separate concurring judgment. Dissenting judgments were given by Lord Sumption (with whom Lord Reed agreed) and Lord Wilson.
First issue— statutory interpretation of the privative clause
Plurality’s decision on first issue
The plurality held that the reference in the privative clause to a ‘determination, award or other decision’ of the tribunal was to be read to mean only a legally valid ‘determination, award or other decision’: para 107. This reading was informed by the House of Lords’ decision of Anisminic Ltd v Foreign Compensation Commission  2 AC 147, which held that a determination affected by error of law was to be treated as a nullity and therefore no determination at all: para 105.
A difference between the privative clause considered in Anisminic and in the RIP Act was that the latter included the phrase ‘(including decisions as to whether they have jurisdiction)’. The plurality read the phrase in parentheses, consistently with the approach in Anisminic, to refer to a legally valid decision relating to jurisdiction only: para 109.
It held that even if this phrase were redundant, this would be immaterial since judicial review can only be excluded by ‘the most clear and explicit words:’ para 111. Parliament would need to use more explicit language to convey a statutory intention to exclude judicial review. For example, by excluding challenges to any ‘purported’ determination: para 111.
The plurality rejected an argument that the security issues involved in many IPT cases were a reason for concluding that judicial review had been excluded. It held that the IPT and Administrative Court could organise their procedures so that points of law could be considered without threatening security interests: para 112.
Finally, the plurality held that the potential for issues before the IPT to overlap with the common law or human rights jurisdictions of the ordinary courts meant it was important that it not develop its own law without scope for further review: para 112.
Lord Lloyd-Jones wrote a judgment concurring with the plurality on this first issue. Lord Lloyd-Jones did not address the second issue of constitutional limits of privative clauses.
In a dissenting judgment, Lord Sumption (with whom Lord Reed agreed) interpreted the RIP Act privative clause to exclude judicial review of a decision of the IPT on the merits: para 172. A privative clause was to be interpreted by identifying the body’s permitted field of decision making, which involves looking to its enabling legislation to analyse the breath of power conferred on it: para 205. As a judicial body, IPT was held to have a wider permitted field of decision making: para 182. Lord Sumption held that the privative clause in the RIP Act was sufficient to oust merits review of IPT’s decisions, but not decisions affected by procedural failings: para 205. Holding that IPT’s alleged error with respect to the computer hacking warrant was an error within IPT’s permitted field of interpretative power, Lord Sumption held that the privative clause was effective to oust judicial review of that decision.
In a separate dissent, Lord Wilson held that reading the privative clause to only exclude review of legally valid determinations required a strained reading of the language of the provision.
Second issue— Parliament’s constitutional power to enact privative clauses
The plurality’s judgment on this second issue is of greatest interest, although it is obiter, given the plurality’s decision to permit judicial review of IPT’s decision as a matter of statutory interpretation.
The plurality stated 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’: para 131. It held that the constitutional limits of the power to exclude judicial review should be based on the constitutional principle of the rule of law and an essential counterpart to the power of Parliament to make law: para 132.
The plurality said that ‘elusive concepts of jurisdiction (wide or narrow), ultra vires, or nullity’ did not provide a basis for determining the constitutional limits of the power to exclude judicial review: para 132. Rather, it was for the court to determine the extent to which a privative clause should be upheld, having regard to its purpose and statutory context; the legal issue in question; and to determine the level of scrutiny required by the rule of law: para 144.
Relevance of decision to Australia
The statutory interpretation method of reading ‘decision’ or ‘determination’ in a privative clause as meaning only a ‘decision’ or ‘determination’ that is valid (and therefore not a nullity) is frequently adopted in Australia.
Further, despite different constitutional contexts between Australia and the UK, the decision of the plurality regarding the constitutional scope of Parliament’s power to enact a privative clause prompts consideration of the High Court of Australia’s decision of Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
It is well understood that Kirk means that a State legislature cannot enact a privative clause to prevent a State Supreme Court from reviewing decisions of administrative bodies or lower courts affected by jurisdictional error.
In Kirk, the High Court held that the constitutionally entrenched judicial review power of State Supreme Courts exists because Chapter III of the Constitution assumes the existence in each State of a Supreme Court. Further, the Court in Kirk held that a State Supreme Court’s jurisdiction to conduct judicial review for jurisdictional error was a ‘defining characteristic’ at federation.
Further, Kirk’s finding that the limit of Parliament’s power to exclude judicial review depends on whether the error is jurisdictional/non-jurisdictional raises questions as to the limits of Parliament’s power to declare that all errors of law under any particular statute are non-jurisdictional.
By framing the constitutional issue in terms of the rule of law, the plurality’s ruling in R v IPT raises the question of whether the rule of law provides a better basis to assess the scope of Australian State Parliaments’ power to enact privative clauses.
 For example, in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
 See for example Hanks, Gordon and Hill, Constitutional Law in Australia (4th ed., LexisNexis Australia, 2017), 614; Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed., Thomson Reuters, 2017), 1055.
 Hanks, Gordon and Hill, 614
 Aronson, Groves and Weeks, 1057,