Comment by pmyteh | Hacker News Reader

Comment by pmyteh | Hacker News Reader

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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".

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