In this post I argue, with reference to Privacy International, that the nature of legislation as a speech act entails that the tension between parliamentary sovereignty and the rule of law is not as profound as is often thought.

In Privacy International the Supreme Court was tasked with interpreting s.67(8) of the Regulation of Investigatory Powers Act 2000, which provides:

Except to such extent as the Secretary of State may by order otherwise provide, 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.

My aim here is not to argue in favour of a particular interpretation of s.67(8), but rather to explore some of the ‘meta-issues’ thrown up by Privacy International, specifically concerning legislative intention and parliamentary sovereignty. I shall stress a point that might appear obvious: that Parliament, when it legislates, is making law. This fact, I argue, has connotations that go unrecognised in Lord Carnwath’s and Lord Wilson’s opinions, and are appreciated only imperfectly by Lord Sumption. Recognising that legislation must be understood as law diffuses the conflict between parliamentary sovereignty and the rule of law that ouster clauses supposedly give rise to. The proper understanding of legislative intention must be one that upholds the rule of law.

Can we jettison parliamentary intention? The ‘clear and explicit words’ test

According to the plurality judgment (delivered by Lord Carnwath), parliamentary intention is ‘beside the point’; the test instead is whether Parliament has excluded review in ‘clear and explicit words’ [111]. It is doubtful whether this expression (taken from Cart) really captures the nature of the test, given that it involves the court expressly departing from the most straightforward understanding of the words in favour of a reading that is linguistically strained. The real nature of Lord Carnwath’s proposal is, I suggest, that an ouster clause will be read down so long as it is linguistically possible to do so.

The problem with Lord Carnwath’s test is that it only tells us how not to read ouster clauses – they shall not be read as excluding judicial review (unless their language allows no alternative). However, any relatively complex form of words will likely permit of numerous potential interpretations. We can only fix a determinate meaning to a phrase if we understand it as deliberately uttered by some actor for some purpose. Consider, for example, two ways in which a court might read an ouster clause providing that ‘the determination of the Commission shall not be called into question’:

‘determination’ means ‘lawful determination’, therefore the ouster does not protect purported determinations that are vitiated by error of law,

‘determination’ means ‘resoluteness’, therefore the ouster prevents courts only from examining how resolute the Commission is.

The latter is absurd in a way that the former is not. But why? Semantically-speaking, it is perfectly sound – ‘determination’ can mean ‘resoluteness’. Its absurdity cannot be gleaned from the words themselves, but only from the (implausible) intention it attributes to Parliament. Without reaching a hypothesis as to what Parliament was doing when it enacted the legislation in question, we are left unable to distinguish between semantically-permissible meanings.

It might be thought that recourse to the idea of parliamentary intention might be avoided by examining the co-text – ‘bank’, for example, is likely to refer to the side of a river in a statute regulating waterways and a financial institution in commercial legislation. Drilling down, however, such reasoning relies on an assumption that the statute is coherent, which in turn rests on our understanding of it as the product of intentional action. Similarly, it is no escape to appeal to background conventions held by the relevant ‘linguistic community’ about the meaning of particular words in particular contexts, not because such conventions are unimportant, but because they will necessarily involve understanding sets of words as intentional utterances. The idea of parliamentary intention can thus not be jettisoned

Legislative Intention and the Nature of Law

Our starting point should, I suggest, be that when Parliament legislates, it makes it the case that the law is as the legislation states the law to be. Legislation is thus what John Searle called a ‘declaration’: a speech act whereby something becomes true by virtue of it being said. (Other examples of declarations include ‘I pronounce you man and wife’, ‘you’re fired’ and ‘I name this ship Boaty McBoatface’.)

This might seem obvious, but it runs contrary to a view that was once widely held: John Austin’s command theory of law. Commands are not declarations: they do not make true what is said (‘fix bayonets!’ does not itself fix any bayonets). In Searle’s terminology, commands are ‘directives’: speech acts which attempt to get the hearer to do something. By thinking carefully about the ways in which lawmaking differs from commands (inspired by the speech act theory of another John Austin), Hart was able to refute the command theory of law. Hart’s critique of Austin was conceptual, but it has normative relevance. Once we appreciate a conceptual distinction between being subject to sovereign commands and being governed through law, it becomes clear that, normatively speaking, the latter is preferable to the former.

Therefore, when interpreting legislation, the focus ought to be on what Parliament has done (the change in the law that the legislation has effected) rather than on what Parliament wants done (which would be our focus if law were a series of commands). Lord Carnwath was therefore right to reject Sir James Eadie’s suggestion that the court should follow Parliament’s ‘policy intention’ [107]. The role of the courts is not to see to it that Parliament’s goals are achieved, it is to apply the law.

The relevant parliamentary intention is not the policy intention, but the legislative intention: Parliament’s intention to enact the statutory provision as law. The fact that the provision is to take effect as law conditions how legislative intention is to be understood. Law is, roughly speaking, a system of public rules and principles that serves to guide conduct and enable individuals to seek vindication of their rights in court. Legislative intention cannot be understood in such a way as is incompatible with this system. Thus, where a statute grants discretion to an administrative decision-maker, Parliament is taken to have intended that that discretion is exercised for public purposes and in keeping with the general principles of the legal system – were it not so, the existence of discretionary administrative powers would undermine the legal nature of the system of government. Where a statute places obstacles to access to the courts, Parliament is taken to have intended that the basic entitlement to seek vindication of legal rights is nevertheless protected. Such considerations, inherent in the very idea of governing through law, may on occasions impede the policy goals that Parliament is seeking to achieve. This fact leads some commentators to talk about a conflict between parliamentary sovereignty and the rule of law. But such talk is misleading, as it obscures the fact that Parliament’s sovereign authority is essentially a legislative authority. The idea of a sovereign lawmaker is only meaningful in a state governed by law. So (as Dicey recognised) parliamentary sovereignty relies on the rule of law: without it we would have, not unfettered parliamentary sovereignty, but no parliamentary sovereignty at all.

Back to Ouster Clauses

The idea of parliamentary intention as legislative intention leads us to an interpretation of ouster clause cases closer to Lord Sumption’s. He states:

If Parliament on the true construction of an enactment has created a tribunal of legally limited jurisdiction, then it must have intended that those limits should have effect in law. The only way in which a proposition can have effect in law, is for it to be recognised and applied by the courts. Parliament’s intention that there should be legal limits to the tribunal’s jurisdiction is not therefore consistent with the courts lacking the capacity to enforce the limits. [210]

This, I would suggest, is entirely correct. For the limits of a body’s powers to be legal limits, they must be enforceable by the courts. It is therefore central to the very idea that Parliament is a legislative body that it is for the courts to police the limits of any powers that Parliament’s legislation may create.

However, immediately after the passage just quoted, Lord Sumption goes on to say:

In order to escape this conceptual difficulty, Parliament would have to create a tribunal of unlimited jurisdiction or one with unlimited discretionary power to determine its own jurisdiction. A sufficiently clear and all-embracing ouster clause might demonstrate that Parliament had indeed intended to do that. [210]

Lord Sumption believes that Parliament is unlikely to intend to create a tribunal of unlimited jurisdiction, and that it is this fact that explains the courts’ hostility to ouster clauses. If my analysis is correct, however, the creation of an unlimited tribunal by legislation is not just unlikely but incoherent. To create a legally unlimited authority is to abandon the project of governing through law. If Parliament were to pass a statute that could not be read other than as creating such a body, the necessary conclusion would be that it had entirely failed to legislate. Like an enactment that read ‘all law is hereby repealed’, it would impossible to understand such a statute as law. It would accordingly be of no legal effect.

To reiterate, this would not be an affront to parliamentary sovereignty, since parliamentary sovereignty entails not that Parliament’s will must always be followed, but that Parliament’s legislation is the highest source of law. Parliament’s will is authoritative only when it takes the form of law. Parliament enjoys legislative sovereignty, not a power of command. The inability of Parliament to create a legally unlimited authority is not down to any ‘higher law’ that takes precedence over legislation, it is internal to the very idea of what it means to legislate.

Since the nature of law is itself a controversial matter, this means that the frontiers of parliamentary sovereignty will themselves be controversial. While, as I indicated above, Dicey seems to have accepted something akin to the reasoning I’ve presented here, it may lead to conclusions that are more or less orthodox depending on which conception of law one holds. Some might believe that enactments that violate fundamental rights, or fail to promote the common good, cannot be understood as law, for example. It might be thought that opening up the ground for such controversy counts against the analysis I have presented here, and in favour of the simpler idea that the courts should seek to implement Parliament’s will, regardless of whether that will manifests itself as law stricto sensu. (Such reasoning, I think, commended itself to Lord Wilson.) However, such a path does not so much avoid controversy as conceal it. It evades the choice between competing plausible theories of law only by falling back on an implausible one. To take the court’s task as being simply to identify Parliament’s will is, in practice, to accept law as a species of command, and thus embrace a theory that has been both conceptually and normatively discredited.

Understanding Legislation as Law

I have been arguing for a particular way of understanding what statutory interpretation involves. The task is to ascertain what the provision means as legislation, that is to say, as a deliberately enacted proposition of law. We can contrast this with Lord Wilson’s interpretation of s.67(8) as an attempt by the parliamentary draftsman to circumvent the Anisminic ruling. Adam Tucker has nicely characterised this line of reasoning: ‘in passing s.67(8) [Parliament has] summarily won the game of cat and mouse… and alighted on the magic formula’. If, as I have suggested, ouster clause cases are to be decided by reference to the limits, not of language, but of law, we should not read s.67(8) as an exercise in strategic wordplay. The question is not – pace Lords Wilson and Carnwath – ‘has Parliament expressed its intention in the right form of words?’, but ‘which interpretation makes most sense of Parliament’s presumed intention to enact the provision as law?’.

This question requires consideration of the extent to which excluding the High Court’s jurisdiction to review decisions of the IPT for error of law is compatible with the legal nature of our system of government. Only Lord Sumption’s speech subjects this issue to prolonged examination. Lord Carnwath treats it as something separate from the task of interpreting s.67(8), and thus worthy of only obiter comment [119]. Lord Wilson appears entirely unconcerned by the issue. The curious consequence of both Lord Carnwath’s and Lord Wilson’s approaches is that the meaning of legislation is treated as entirely divorced from the idea of what it means to legislate. If we bear in mind the fact that to legislate is to make law, we can relieve the tension between the rule of law and parliamentary sovereignty, extricate ourselves from artificial wordplay and focus on the important question of how fidelity to law requires an ouster clause to be interpreted in the legal and factual context of a particular case.

Alexander Latham-Gambi is a Lecturer at the Hillary Rodham Clinton School of Law, Swansea University.

He would like to thank Tom Hannant, Martin Kelly and Paolo Sandro for comments on an earlier draft.

(Suggested citation: A. Latham-Gambi, ‘What is Parliament doing when it legislates? Legislative Intention and Parliamentary Sovereignty in Privacy International’, U.K. Const. L. Blog (20th April 2020) (available at https://ukconstitutionallaw.org/))