On 1st December, the government published a draft bill that—if passed—would repeal the Fixed-term Parliaments Act. The political wisdom of repealing the act and the electoral consequences of doing so quickly generated discussion. But included in the draft was a provision of a different kind—one arguably more controversial than the rest. Clause 3 seeks to insulate the legislation from any legal challenge. It is an “ouster clause”—so called because it would potentially oust the jurisdiction of the courts. The intention is to make clear that the timing of elections is a matter for politicians: this is an area off-limits to the judiciary.
Importantly, this is not the first clause of this kind the government has brought forward in recent months. The original draft of the now-infamous Internal Market Bill, which would have overruled parts of the EU Withdrawal Agreement, included what amounted to an ouster of astonishing scope, though as talks with the EU progressed most of the bill’s most controversial clauses were dropped. The original formulation, which sought to grant ministerial powers “notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent,” fell away.
Viewed generously, these two developments might seem comparatively harmless. Of course the timing of elections should normally be an issue for politicians, and the internal market clauses were ultimately withdrawn. Look closer, however, and the clauses become part of a troubling wider picture. In addition to telling us about the disgareeable character of the government they also tell us something important about the UK’s constitutional position.
For Lord Wilson, who sat on the Supreme Court until earlier this year, the clauses are “in my personal and provisional view, constitutionally objectionable, as well as unnecessary.” While stressing that only in highly improbable circumstances would a challenge to a dissolution of parliament ever come before the courts, the clauses theoretically raise “big constitutional questions.” Among them: “Are there any circumstances in which a court should not obey an Act of Parliament?”
The new clauses come at a moment of immense tension between the government and the courts. The relationship is probably more fraught than at any time in living memory. The Supreme Court’s decision in 2019 to annul Boris Johnson’s prorogation turbocharged grievances. Critics of “judicial activism” argue that judges have usurped the role of parliament. It may be a phantom problem but the position has adherents at the very top of government. And this is the fraught context in which the provisions in the bill surfaced.
It is important to point out that ouster clauses are not new and for decades, if not centuries, the courts have had to weigh how far to assert their position. In the classic 1969 Anisminic case, the top court ruled that an ouster was insufficient to prevent them overseeing a commission’s decisions to award compensation for sequestrated property, since the clause only protected valid determinations and the commission had exceeded its jurisdiction, meaning its determinations were invalid. Another landmark case came last year in Privacy International, where an ouster seemed designed to close the loophole in Anisminic. Yet in the view of the Supreme Court the relevant clause was still insufficiently clear to justify setting aside the fundamental presumption in favour of judicial oversight. As Lord Carnwath put it in his judgment, “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.”
So perhaps it should not be surprising that the executive sought to fortify its new ouster clause further still. Seeking to restore the prime minister’s prerogative power unliterally to call a general election, clause 3 of the FTPA repeal bill reads: “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.” The use of the word “purported” may be an attempt to insulate from challenge even those decisions which a court decides are legally flawed—this point was put to me by Lord Lisvane, who as Sir Robert Rogers was Clerk of the House of Commons. That this could have perverse constitutional results is obvious, since pretty well anything can qualify as a “purported decision.” What does it all mean?
Wilson, agreeing that “in context, the phrase ‘purported exercise’ could only mean a ‘wrongly claimed’ exercise,” continued: “Are these parts of clause 3 an attack on the rule of law? And if so, are they entitled to be regarded as law at all? These are profound questions. It is certainly possible that the answer is ‘no’—that if these parts of clause 3 were enacted, they would not rank as law at all. Observations in... Privacy International, and in an earlier decision called Cart, would point in that direction. This is just the sort of conflict into which the courts would not wish to be drawn… they are, I believe, very keen to re-establish mutual respect and trust with the government.”
It must be hoped that a situation in which clause 3 became a live issue would not arise. A general election is a political issue par excellence and if the courts were seeking to intervene, something would have gone very badly wrong (you quickly get into hypotheticals about the PM being bribed to dissolve parliament). But there is nonetheless an issue of the greatest importance at play. Ouster clauses speak to the most fundamental constitutional question of them all: where sovereignty really lies.
According to most accounts of orthodox constitutionalism it lies in parliament. In recent years Vernon Bogdanor’s summary “what the Queen in parliament enacts is law” has been widely cited. Certainly the popular perception is that parliament is sovereign and what it enacts in clear terms must become law. Where the courts are entitled to question legislation it is because of lacunae or ambiguity rather than that they dispute parliament’s ultimate right to legislate as it sees fit.
But this has never been a universally accepted view. Arguably the role of the courts is just as vital a constitutional principle as parliamentary sovereignty. As Lord Bridge put it: “in our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.”
What happens when these two principles collide? Which should override the other? It is this question that is engaged by the ouster. If parliament seeks to remove an area from judicial oversight, there may be methods available to the courts to avoid outright confrontation in any individual case: as in Anisminic they may conjure up a formalistic workaround. But the fundamental question of whether parliament has the right to exclude the courts is one with no obvious resolution.
In his Privacy International judgment, Lord Carnwath stressed that: “I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld.”
It is not completely impossible that clause 3 becomes a live issue. One former law officer told me: “the door may be sufficiently ajar as to give the courts scope to intervene if there was some unforeseeable abuse… It is difficult to imagine what kind of circumstances might give rise to such a situation, but then 18 months ago, few would have envisaged the circumstances attending the prorogation case!”
In recent times the government has sought to hoard power for itself and is in the process of reviewing the operation of judicial review and the Human Rights Act. It would be an optimist who assumed this was intended to strengthen checks on its powers. In seeking to sideline any potential role for the courts to review an illegitimate dissolution, the new bill fits with this trend.
As Helen Mountfield QC put it: “whether or not clause 3 of the FTPA [repeal bill] would be an effective ouster clause, the fact that the government has now twice in one session sought to oust the jurisdiction of the courts ought to depress democrats who care about the rule of law, whatever their party-political stripe.”
More broadly, the new clause forces us to confront questions about the interplay between different branches of the state in ways we are not accustomed to—and on which we have no clear answers.
