The prominent legal commentator and blogger David Allen Green often says “constitutional law should be boring”, and it is a sign of turbulent times when his analysis is called upon and such stories hit the front pages. Green has been busy over the last five years, with various high-profile cases reaching the Supreme Court on issues such as parliamentary sovereignty, the extent of the government’s power to prorogue parliament and the disclosure of Prince Charles’ handwritten letters to government ministers.
Yet in reality constitutional law is only viewed with a tinge of excitement by the press and public when intertwined with hot political issues, whether that be Brexit or anything to do with the monarchy. Unfortunately, a dry government review on ouster clauses (a favourite topic of constitutional lawyers, but nobody else) has not sparked much excitement since being announced at the end of last month. However, it should be an issue of real concern, part of a worrying trend of a government seeking to hoard power with the executive.
First, what are ouster clauses? For public lawyers, the question may lead to references to countless books, articles and lectures on the subject. But, simply put, these are provisions in primary legislation intended to render a decision beyond the reach of the courts – so they are ‘non-justiciable’ – and the courts cannot judicially review a decision or use of power. It aims to put government action above the reach of the law.
The Tory government has announced a review to look at methods by which to widen and give greater effect to the use of ouster clauses. This is because, since the mid-20th-century case of Anisminic (the nemesis of many a law student), the courts have attempted to interpret such legislative clauses with an assumption that parliament intended to legislate for a liberal democracy, subject to the rule of law.
To give an illustration, if parliament passed legislation preventing members of the public challenging a government decision, the courts would give this effect, but subject to considerations flowing from the rule of law, such as the rules of natural justice, due process and protection from irrational decisions.
The issue of reforms to the use of ouster clauses is significant both in its effect, but also in what it says about this government. It has announced a consultation process of just five weeks to consider an issue that is at the heart of the balance of our constitution – the tension between parliamentary sovereignty and the rule of law. The careful management of this tension, to ensure it does not lead to crises, is needed to avoid the dangers of an “elective dictatorship”, warned of by Lord Hailsham, a former Tory Lord Chancellor.
Just because a government wins a large majority in parliament, and accordingly receives parliamentary power through its MPs, should not mean considerations of fairness, balance and due process are forgotten. Indeed, such a restraint on the executive – and on parliament – is a central tenet of a liberal democracy.
Yet this government is seemingly intent on pushing on regardless, rushing through reforms that may dramatically shift the constitutional balance. Its first tactic was to announce a review of administrative law by a former loyal minister, Lord Faulks. But when his report was published, it did not appear to have reached the desired conclusion. Discussing the issue of ‘justiciability’, the report stated:
“The decision to legislate in this area is ultimately a question of political choice. But when deciding whether or not to do so, the panel considers that parliament’s approach should reflect a strong presumption in favour of leaving questions of justiciability to the judges.”
It was with some surprise, then, that Robert Buckland, the Justice Secretary, stood in the House of Commons and stated that the report found a worrying willingness from the courts to enter into political terrain – a trend, he said, that needed to be curtailed by reform of ouster clauses. When this finding was put to Lord Faulks, a Conservative, he replied: “No, I don’t think it really was our finding.”
The government did not like the conclusions of that review, so has launched another. The vast majority of submissions to Faulks’ review argued against reform in this area. They, too, are seemingly going to be ignored by a government intent on expanding its own powers at the expense of others.
Of course, this is tempting for all governments. In 2003, when Labour enjoyed a majority far larger than Boris Johnson’s, such an ouster clause founds its way into an asylum bill (although the government amended the legislation after strong opposition from many within the party and outside). What is more worrying now is that the government is progressing on the basis of making general changes to the use of ouster clauses with the implied aim of increasing executive power generally.
There are, as has been repeatedly accepted by the courts, exceptional circumstances where full ouster clauses are necessary – but they must be set out clearly, with cogent reasons in primary legislation. The idea of making general changes to allow these ouster clauses to become more common is incredibly dangerous.
The government should proceed with caution. As custodians of our constitution, rushed reforms in this area, taking away powers from the courts and thus the public seeking to challenge decisions of public bodies, would amount to a grossly negligent act. It may not be as interesting as Supreme Court drama, but reforms to the use of ouster clauses could be a deeply regressive development.