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Comment by goodcanadian | Hacker News Reader

The High Court has ruled it is unconstitutional[0]. It cannot simply be overruled by an act of parliament.

[0]Edit: There seem to be objections to my use of the term "unconstitutional." They have ruled it as against common law:

“The aversion to general warrants is one of the basic principles on which the law of the United Kingdom is founded. As such, it may not be overridden by statute unless the wording of the statute makes clear that Parliament intended to do so.”

These sort of "basic principles" are often referred to as the British constitution or constitutional principles, so I believe my choice of term is correct even if there is no single written document called the "constitution." As to the question of whether parliament can overrule it, perhaps, technically, yes, but I find it very difficult to come up with a scenario that would successfully meet the objections in the ruling.

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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 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

> 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.

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.

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!

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...)

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-mar...

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.'

My take is that this means the courts may not question any legal exercise of those powers sure, but if the exercise of the powers is found to be contrary to law then it is void and subject to judicial review. And that’s fine, there shouldn’t be any way to bypass judicial review.

Perhaps but the mother of all ouster clauses still survives and is likely to be effective (and should be, in my view): the section of the 1689 Bill of Rights which reads "That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament."

Note that if you should doubt that Parliament can do this if it really wanted to, consider that those courts are themselves also subject to Parliament's whims. If it wants to do something courts keep blocking it can dissolve those courts and then they can't block it.

For example the UK's Supreme Court is I would argue in most practical ways far more independent than the more famous Supreme Court of the United States, its judges are not appointed based on partisan loyalty or selected to achieve some naked political goal bypassing the legislature, they're just independent judges from roughly the same process that creates other judges in the UK's courts. But - in this one way they're far less independent than the SCOTUS, the Congress cannot abolish SCOTUS, but Parliament created and could in principle destroy the UK Supreme Court.

Would they have the guts to do that? Realistically no. Their constituents would I think be pretty unhappy about that. But in principle it is technically possible.

"Would they have the guts to that? Realistically no."

Is it so unrealistic? It's only existed in its modern form since 2009, and we've removed the supremacy of ECJ rulings since then, which once seemed similarly unthinkable. Given the rage of the government against the 2019 SC ruling on prorogation it wouldn't seem surprising to me if it turned its sights on it at some point.

Indeed you're correct, and even orbiter dicta in the Supreme Court (nee House of Lords Appellate Committee) has suggested that Parliamentary Sovereignty is not as solid as one might suggest. However, that's never formed part of precedent.

All that said, the scope for the Supreme Court disregarding the express will of Parliament is incredibly narrow, and that scope seems only to really be "access to justice".

Britain doesn't have a constitution. As the article alludes to, when Acts of Parliament clash with semi-constitutional items like international treaties, human rights laws, or ancient traditions, the courts will attempt to construe the law as Parliament not deliberately intending to override the standard. However, if Parliament explicitly states their intention, they can override anything.

E.g. Lord Hoffmann in ex parte Simms [2000] 2 AC 115, at p.131:

    "Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

Britain doesn't have a constitution.

Yes, it does. It is unwritten and fuzzy, but Britain definitely has a constitution or at least "constitutional principles" as mentioned in the quote you provided:

" . . . In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

While it may technically be possible under certain circumstances, I find it very hard to image how a piece of legislation could be crafted that would successfully override the arguments made here.

> While it may technically be possible under certain circumstances, I find it very hard to image how a piece of legislation could be crafted that would successfully override the arguments made here.

Something along the lines of "The issuance of general warrants is expressly permitted," perhaps? The principles of constitutionality may be similar, but the amendment process isn't, it simply requires an Act of Parliament.

I doubt that a court would find that sufficient; it seems overly broad and therefore ambiguous, but hey, I'm not a lawyer.

"Notwithstanding the objections to their issuance by <court> on <date> and <court> on <data>, and stated explicitly so as to satisfy the reasoning of said courts, the issuance of general warrants is intended by Parliament and shall henceforth be expressly permitted"

Parliament overruling the decision about warrant specificity is quite straightforward. The wording in the Act was somewhat ambiguous about how much specificity was required, so the court ruled that it be interpreted tightly in accordance with the principle of legality. Parliament adding a simple 'The warrant may apply to broad classes of activity and to persons not currently known to the Secretary of State' would probably be enough for that - in principle it just needs to be unambiguous that that is what Parliament intends to do.

The clause attempting to oust the jurisdiction of the courts, on the other hand, would require something a lot more vigorous. I don't know whether a clause like yours would be sufficient, but if judges can find a way around it they probably will.

>The clause attempting to oust the jurisdiction of the courts, on the other hand, would require something a lot more vigorous. I don't know whether a clause like yours would be sufficient, but if judges can find a way around it they probably will.

The dicta in R (Jackson) v Attorney General would be instructive here.[0] The judges in that case put forth opinions suggesting that the Supreme Court may, if it came to it, disregard parliamentary sovereignty if there were limits placed on, for example, access to justice.

[0] https://en.wikipedia.org/wiki/R_(Jackson)_v_Attorney_General...

Just to nitpick - the UK constitution is uncodified (ie not in a single document called a constitution) and perhaps in part unwritten but most (perhaps all) of it is written down in the various constitutional statutes and judgements.

Fair point.

> Britain doesn't have a constitution.

https://en.wikipedia.org/wiki/Constitution_of_the_United_Kin...

Also try reading 'The British Constitution: A Very Short Introduction' by Martin Loughlin.

It's right there in your quote, if the parliament spells it out in a law they can have it.

They did spell it out in a law: the one that was just overturned. I expect it will be very difficult to come up with a wording that will stand up to the scrutiny of the court.

No law was overturned, a practice of the government was found to be against the law.

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