In a recent comment on the Government’s Rwanda Bill and on speculations about an unprecedented strike down by the Supreme Court, Professor Mark Elliott asked a question that has been on many UK public lawyers’ minds lately: “Are we headed for a constitutional crisis?” This question, to be sure, is not new. However, with a Government and Parliament increasingly willing to act with disregard for cardinal constitutional principles such as the rule of law and with certain judges’ growing outspokenness about their intention to resist further attacks on the country’s constitutional fundamentals, determining whether we are indeed in a constitutional crisis has gained great urgency. For if we are already in a crisis, then it may be necessary to take action to prevent the situation from spiralling out of control.
Elliott’s own view is that there is no such crisis – at least not yet. His primary reason appears to be that “British courts have never struck down [an] Act of Parliament as unconstitutional”, senior judges’ threats to the contrary notwithstanding. In a line of powerful scholarship and commentaries, Elliott has developed the view that the resulting uncertainty about how far the courts and Government are willing to go “is a good rather than a bad thing” (p 4). For instance, according to Elliott, we should not lament the fact that judges have developed adventurous interpretations of statutory ouster clauses (ie provisions aiming to prevent judicial review of the exercise of public powers) that such clauses “cannot bear”. Rather, we should welcome these interpretations as simple “warning shots across Parliament’s bows” that avoid confronting parliamentary sovereignty and thus “facilitate[] the development of a form of constitutional balance” (p 20).
It is hard to resist the initial appeal of Elliott’s argument. However, I shall nonetheless explore two counterpoints in this blog post, in the hopes of stimulating further discussion on this important issue. Focusing on ouster clauses, I will first propose that, far from preventing crisis, Parliament’s growing disregard for constitutional fundamentals and the judiciary’s arguable incursions into legislative territory may in fact have incited a silent constitutional crisis. Second, I will show that, in light of the ongoing assault on the judiciary and our current age of misinformation, we have reason to advocate for more, not less, candour in the judiciary, even if this entails revisiting the absoluteness of parliamentary sovereignty.
The silent constitutional crisis
The Oxford English Dictionary tells us that, in its original medical sense, the word ‘crisis’ describes a “decisive turning point between recovery and continued illness or death” of an ailing patient. Building on this etymology, I propose to understand constitutional crises as transformative situations or periods of escalated conflict in which the healthy operation of a constitution, which involves among other things respect for the separation of powers, can only be restored through a “decisive intervention”. Such a crisis is ‘silent’ when it is not openly diagnosed as a crisis, yet still has all its symptoms.
Let us now consider whether this definition applies to developments in the UK constitution over the past 75 years, particularly regarding ouster clauses. Ouster clauses have received ample attention, including in these pages (see eg most recently here and here). Nonetheless, a brief recounting of the main developments will be necessary to understand how the confrontation between the main branches of power has escalated in the past decades.
A good starting point is Smith v East Elloe Rural District Council (1956), which has been described as the “high water mark of judicial timidity”. This case involved a time-based ouster in paragraph 16 of Part IV of Schedule I to the Acquisition of Land (Authorisation Procedure) Act 1946, which holds that “a compulsory purchase order … shall not … be questioned in any legal proceedings whatsoever”, unless the aggrieved person makes an application to the High Court within six weeks of an order’s notice. The House of Lords’ majority found that an action brought after six weeks was not reviewable, with Lord Morton going as far as to hold that it would “of course” have been “within the powers of Parliament” to prevent review of a compulsory purchase order by a “local district council [that] wished to gratify a grudge against [a person], or for other reasons even more sinister” (p 756).
In Anisminic Ltd v Foreign Compensation Commission (1969), the House of Lords took a decidedly less timid approach when ruling that the Foreign Compensation Commission had misconstrued the Foreign Compensation Act 1950 when it rejected the appellant’s application for compensation. Section 4(4) of the Act stated that “[t]he determination by the commission of any application made to them under this Act shall not be called in question in any court of law”. Famously (or infamously, depending on one’s view), the majority in the House of Lords found that, since it had addressed itself to an irrelevant inquiry, the Commission’s decision only amounted to a “purported” determination (p 170), not an actual determination, and thus exceeded the Commission’s jurisdiction. In the teeth of what might well be regarded as the clear wording of the ouster in Section 4(4), the House of Lords thus went on to review the Commission’s “purported” determination.
The (current) zenith of judicial defiance of ouster clauses was reached in R (Privacy International) v Investigatory Powers Tribunal (2019). In this case, the Supreme Court was faced with Section 67(8) of the Regulation of Investigatory Powers Act 2000. The provision stated that: “… determinations, awards, orders 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”. Despite the even clearer wording than that of the Anisminic ouster, a majority of Supreme Court judges found that Section 67(8) does not oust the supervisory jurisdiction of the High Court. Certain commentators were quick to castigate the Court’s reading of the ouster clause as “highly strained” and “stretched to the breaking point”.
Of course, this judicial trend of stretching statutory meaning has not been happening in a vacuum. It is a response to the Government’s audacious attempts to pass increasingly controversial laws, which itself is in part a response to these judicial developments. For example, in its Response to the Judicial Review Reform Consultation, the Government made it clear that Parliament enacted the wider ouster clause at hand in Privacy International precisely to overcome the issues of the Anisminic ouster clause. It wanted to ensure that, this time, judicial review would be successfully ousted (see para 51). In other reports, too, the Government has made no secret of its frustration with the courts’ increasingly strained attempts at disarming ousters. In its Response to the Independent Review of Administrative Law, it emphasised that, “[a]s a core principle, the Government considers that ouster clauses legislated for by Parliament should not be rendered as of no effect” (para 89). As such, it held that the approach to ousters that the courts have followed since Anisminic “is detrimental to the effective conduct of public affairs as it makes the law as set out by Parliament far less predictable, especially when the courts have not been reluctant to use some stretching logic”, adding that the “danger” this creates is “a real one” (para 39).
Continuing the vicious circle, the Government has recently escalated the conflict further with even more divisive legislation. For example, Section 11A of the Tribunals, Courts and Enforcement Act 2007 (TCEA), introduced by the Judicial Review and Courts Act 2022, was enacted in response to Anisminic and Privacy International, and contains what has been called a “super ouster clause” that ousts review of Upper Tribunal (UT) decisions and “purported decisions” (subsection 7), even if the UT made an error in reaching its decision (subsection 3). A similar ‘super ouster clause’ can now be found in Section 51 of the recently passed Illegal Migration Act 2023.
The current culmination of the battle between the courts and the Government is the highly contentious Rwanda Bill. The Government introduced this Bill after the Supreme Court held unanimously in R (on the application of AAA) v Secretary of State for the Home Department (2023) that the Government’s Rwanda asylum policy is unlawful. Ignoring the Supreme Court’s finding to the contrary, the Bill states in Section 2(1) that Rwanda must be considered a safe country by all decision makers, adding an ouster in Section 2(3) that prohibits courts and tribunals from considering reviews and appeals against removal decisions (including “purported decisions” – Section 7(1)) on the grounds that Rwanda is not a safe country. As the Joint Committee on Human Rights has pointed out, the Bill not only breaches human rights and international law. It also “undermines the constitutional role of the judiciary, arguably jeopardising both the separation of powers and the rule of law” (para 22). Tom Hickman KC puts it even more bluntly in a paper by the Institute for Government. He warns that, for Parliament to contradict the Supreme Court’s finding that Rwanda is not a safe country, “would infringe the constitutional principle of the separation of powers … Parliament is not being asked – as it often is – to ‘overrule’ a judicial decision by changing the law. It is being asked to say that the facts are not as that court found them to be” (p 8).
To be sure, in R (on the application of Oceana) v Upper Tribunal (2023) and R (on the application of LA (Albania)) v Upper Tribunal (2023) the High Court and Court of Appeal, respectively, have applied the ouster in Section 11A TCEA without batting an eye. However, as others have rightly pointed out (eg here and here), these were relatively uncontroversial cases. Because the cases were centred on decisions of the UT, which is itself a judicial body, the judges did not have to deal with the more difficult question of whether they should apply a total ouster clause banning the review of a decision by an executive body.
While this question remains open, there can be little doubt in light of the above-sketched history that the judiciary and the executive have been on a downward spiral that has arguably pulled them away from their proper roles. The Rwanda Bill epitomises the Government’s (and Parliament’s) arrogation of core judicial functions such as the determination of facts, while Privacy International exemplifies the Supreme Court’s willingness to venture into law-making territory under the guise of ‘interpretation’ when imputing meanings to clear ouster clauses that they reasonably cannot bear.
To my mind, these are signs that, on the definition I proposed, we are already in a constitutional crisis. This is because we are dealing with a decades-long escalation of a conflict characterised not only by the Government’s increasing disregard for the rule of law, human rights, and the separation of powers, but also by the Supreme Court’s growing indifference to the separation of powers, at least regarding ouster clauses. These are all symptoms of a constitutional crisis. Yet, this has been a silent crisis. For while political commentators have labelled sundry recent developments as constitutional crises (eg here and here), constitutional lawyers have been reluctant to acknowledge that we may already be in a crisis, instead preferring to suggest that we might face a crisis at some point in the future. The Government, too, seems unwilling to call a spade a spade. While it has rightly warned that the “danger” we are facing “is a real one” (para 39), it stopped short of saying that we are already in a constitutional crisis. But even such tepid acknowledgement, let alone the more widespread silence, does not make this crisis any less of a crisis.
A plea for candour
Writing before the Supreme Court’s decision in Privacy International, Elliott acknowledged that the courts’ interpretations of ouster clauses can have a “through-the-looking-glass quality” (p 20) insofar as they may be accused of going beyond mere interpretation. However, he argues that it is vital that judges continue to frame their decisions as “interpretation” rather than “explicit denial of legislative authority” because this helps them find and maintain a “balance of institutional power” (p 20). This is a plausible argument. However, considering the above-mentioned escalations that occurred after Elliott’s reflections, it is worth asking whether judges should continue along the lines Elliott suggests or whether, as I believe, they might be better off discarding their looking glass and taking a more straightforward approach.
There are two reasons why I think more candour is advisable. First, the courts’ ‘through-the-looking-glass’ approach on ouster clauses has become an easy target for conservatives who are keen on reining in the courts well beyond judicial review. For instance, commenting on Privacy International, Professor Richard Ekins criticised the courts’ tendency to ignore plain ouster language as “sophistry” – and it is difficult to disagree with him. The more courts adopt adventurous ‘interpretations’ to circumvent even the plainest and most complete ousters, the more their rulings are grist to the mills of those who have set their sights on a larger prize: the disempowerment or even abolition of the Supreme Court (see eg here and here).
Second, it would be dangerous to ignore that we now live in what has been called a “Misinformation Age”. With the rise of social media and the decline of traditional news outlets, it has become easier than ever to read and share ‘fake news’, blurring the lines between what is true and what is not. This is relevant for the debate around constitutional crises because studies (eg here and here) have shown that the spread of misinformation is linked to an erosion in the public’s trust in democracy, and it negatively impacts human rights. In this context, a ‘through-the-looking-glass’ approach, even if well-intentioned, risks undermining rather than securing our constitutional fundamentals. Of course, decisions such as Anisminic or Privacy International are not in the same ballpark as the kind of misinformation, let alone conspiracy theories, that are contaminating social media. After all, they are thoroughly reasoned decisions that attempt to stay true to facts. However, if even sympathetic observers like Elliott cannot help but notice that the courts’ “interpretation[s] strain[] linguistic credulity” (p 19), then we have good reason to ask whether it would not be in the courts’ best interest to start taking a more candid approach. This may well involve revisiting the orthodox doctrine of parliamentary sovereignty and grappling with whether parliamentary sovereignty is, “if it ever was, absolute”, to quote Lord Hope (para 104). As Trevor Allan has shown, this would not entail rejecting parliamentary authority, but it would put it on a more even footing with other constitutional fundamentals such as respect for the rule of law, human rights, and separation of powers. And this, in turn, would give these other constitutional fundamentals a sturdier conceptual foundation than the courts’ current approach.
It may be objected that, while the current situation is not ideal, confronting parliamentary sovereignty more directly would make matters worse. As Elliott puts it, “there is a very substantial possibility that naked curial rebellion in the face of an ouster clause would be taken to amount to egregious judicial overreach” (p 19). In a similar vein, Professor Jonathan Morgan compellingly laid out the virtues of judicial pragmatism in his recent inaugural lecture at the University of Cambridge, cautioning against “[j]udicial discussion of ultimate theoretical questions, such as the nature of parliamentary sovereignty … unless strictly necessary to resolve a dispute”. It is certainly important not to jump the gun, nor should one underestimate the repercussions that an explicit strike down of an ouster clause by the judiciary might have, though what the consequences would be is ultimately an empirical question that we can only speculate on. However, the argument for a business-as-usual approach relies on the assumption that the status quo is viable or, to put it in Elliott’s terms, that there is a “balance” between the different branches of power. Yet, as I have argued above, it seems more plausible to view the relationship between the Government and Parliament on the one hand, and the courts on the other, as one that is characterised by increasing conflict, not balance. If this is right, then it is possible that continuing in the same way may not be an option for much longer.
This is why our current period is best described as a crisis, that is, a turning point between recovery and continued illness. In such critical times, business as usual is by definition not necessarily the best way forward. Rather, what may be required is a “decisive intervention” that restores the constitution to a healthier state. Indeed, such an intervention may have to come sooner rather than later. According to the Joint Committee on Human Rights, it “would be difficult given the language of the [Rwanda] Bill” (para 23) for the courts to read down the ouster clause or other parts of the Bill if they were confronted with a claim in which the actual situation in Rwanda is patently at odds with the requirement to deem it safe. To put this another way, if Parliament has found, or may soon find, the “magic formula” (p 577) – that is, a “crystal clear” clause allowing it to oust judicial review without the courts being able to interpret the problem away – it may be preferable for them to declare the relevant provisions unconstitutional, rather than letting the current malady fester.
Conclusion
It might be tempting to ignore the choice facing us – or rather the judiciary – considering the political change that likely lies ahead. However, as the alarming political developments across the pond illustrate, it would be unwise to be lulled into a false sense of security, especially considering the general democratic decline we are seeing around the world. Focusing on ouster clauses, I have argued in this blog post that we have good reason to regard the escalated conflict between the judiciary and the Government and Parliament as a constitutional crisis, albeit a ‘silent’ one given the understandable desire not to make a diagnosis that may add fuel to the fire. But if we are indeed witnessing a constitutional crisis then it may be best not to keep kicking the constitutional can down the road, and to instead consider making an intervention that can end the crisis. To be clear, I do not advocate a rash judicial rebellion that will exacerbate the problem. However, I believe it is time to not only think about the dangers arising from confronting the orthodox conception of parliamentary sovereignty, but also to consider the dangers of not doing so. The only thing that is ‘crystal clear’ is that too little attention has been devoted to the advantages that a more candid approach by the judiciary might have, and my aim here is to start remedying this.
I am indebted to John Adenitire, Ya Lan Chang, Mark Elliott, Shona Wilson Stark, Stefan Theil, and the Blogs’ editors for their comments on earlier drafts, and to Michael Gold for his research assistance.
Raffael N Fasel, Yates Glazebrook Fellow and College Assistant Professor in Law, Jesus College, and Affiliated Lecturer in Law, University of Cambridge
(Suggested citation: R. N. Fasel, ‘Ouster Clauses and the Silent Constitutional Crisis’, U.K. Const. L. Blog (20th February 2024) (available at https://ukconstitutionallaw.org/))
