 Helo, rydyn ni'n gweithio. I'm Patrick Elias. I'm a retired quarrel appeal judge. I still sit sometimes. We're basically retired quarrel appeal judge. As you know, we're having this discussion today about the privacy international case, raising absolutely fascinating issues. It's always important that the Supreme Court gives clear guidance and they have done, by four to three in this case, before giving two different strands of reasoning and the three dissenters giving another two different strands of reasoning. And it's worth pointing out that the court of appeal, three members of the court of appeal, agreed with the minority, not the majority. And the Divisional Court, two judges couldn't agree with each other. Apart from that, clarity is the key in case of argument. An important case, of course, that it deals with is Anna's Munich. And I noticed in the front row with Professor Feldman. We have a man who's written in very great detail on that case specifically. So I'm sure his observations will be worth listening to. In addition to the two who are speaking today, two very distinguished professors. But are you ever allowed to say that a professor is not distinguished? Have you heard people say this undistinguished professor? Anyway, these are distinguished professors. Mark Elliott and Alison Young. Mark is going to speak for each of them to speak for 10 or 15 minutes. Mark is going to focus on the parliamentary sovereignty aspect of the decision. And Alison is going to focus on questions of abuse of power in the room of law. So we'll start with you. Thank you. So I'm going to say a little bit first about the case genuinely in the background, including what the lower courts made of the issue. And then I'll focus on what the Supreme Court said about parliamentary sovereignty. So I think that we've got a mixture of probably different year groups in the rooms. For those that haven't looked at this case yet in lectures, I'll just say a very little bit about what the issue was. So the Investigative Powers Tribunal had made a decision essentially holding that the Secretary of State was permitted to authorise computer hacking on what's called a thematic basis. For example, in relation to classes of people. And privacy international was seeking to challenge that finding, that judgment of the IPT. And its central contention was that the tribunal had misinterpreted Section 5 of the Intelligence Services Act 1994. But for us and for the courts, the crucial question was whether, as a preliminary matter, whether this case could be brought at all, was there any possibility of challenge in the regular court to the IPT's decision on this point? Why might there not be the possibility of that kind of challenge because of Section 67 of the Regulation of Investigative Powers Act 2000, which at the time provided, that except to such extent as the Secretary of State by order provides otherwise, determinations, awards, orders and other decisions at 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. Now, Section 67 did leave open the possibility for the Secretary of State by order to provide for an appeal route against the IPT's decisions, but that had not happened. So there was no possibility of appeal and the question therefore was was there any possibility of judicial challenge by way of judicial review? If the answer to that question was no, then IPT decisions such as this one would be wholly immune from judicial scrutiny. It's worth adding that since these issues arose, the legislation has been revised and the position is rather different, but at the time this is the situation that the courts were presented with. So in the absence of a right of appeal, was there a possibility of review or were the IPT's decisions wholly protected by, again, scrutiny by the ordinary courts? So what did the ordinary courts make of this issue? As Sir Patrick said, it started out in the divisional court which was effectively divided. So Sir Brian Leverson said he thought there was a material difference between this case and Anna's Minnick and he placed particular emphasis on the nature of the decision-making body in question. Whereas in Anna's Minnick the foreign compensation had been a public body exercising administrative functions, the IPT was a judicial body which was itself exercising a supervisory jurisdiction over the actions of other public bodies. And for Sir Brian Leverson this made a critical difference. It was a point of distinction with Anna's Minnick. The IPT itself was a judicial body and that made the issues difference in terms of where the balance lay in terms of a constitutional principle. I'll come back to this point in a second about this idea of balancing different principles against each other. Now, although he didn't formally dissent if he had better been a one-one tie at which point apparently a larger court has to be constituted, Mr Sysleget did have serious misgivings about the approach that Sir Brian Leverson had adopted. He said that exempting the IPT from judicial review would render it a legal island and that would be inimical to the rule of law because it would have the capacity to make decisions including decisions about the law and the meaning of the law and there would be no means available to anyone to question or challenge or correct those decisions. So we have a stark difference of opinion in the divisional court. When the matter reaches the court of appeal this says, actually this is a very easy case it just raises a short point of statutory construction. We have Anna's Minnick and Anna's Minnick tells us generally how we interpret ouster clauses of this nature and then the question is simply is there a relevant difference between the ouster clause that the House of Lords had to look at in Anna's Minnick and the ouster clause that we have to consider in this case? The linguistic difference is that this ouster clause refers to decisions as to jurisdiction and the question is whether or not this makes any difference in terms of how we look at the meaning of the clause. For law justice sales it did make a difference. He said that this means that all decisions even if those decisions are founded on erroneous understandings of the law are made in uniform review by this ouster clause. So what we see if we combine law justice sales as judgment in the court of appeal and Sir Brian Leverson's judgment in the divisional court is two different ways in which Anna's Minnick is being distinguished. Law justice sales places particular emphasis on the nature and clarity of the language which is in play. He attaches weight to the additional words in this ouster clause, decisions as to jurisdiction as distinct from the ouster clause in Anna's Minnick. Whereas Sir Brian Leverson placed particular emphasis on the institutional difference between the two public bodies that were the potential subjects of judicial review, one was a public authority exercising administrative functions, one was a judicial body exercising a form of supervisory jurisdiction. So that's the lie of the land as the case arrives in the Supreme Court. Before I turn to the Supreme Court judgment I want to frame it by asking what's really going on in cases about ouster clauses. What I think is really going on is that we have three key constitutional principles which are brought into relationship or tension with each other by the particular device of an ouster clause. We have the principle of parliamentary sovereignty. What is it that Parliament wants? We have the principle of the rule of law which requires access to court and judicial curation of the law. And we have a separation of powers which has things to say about what the role of court is among other things. Now when we encounter an ouster clause we encounter a set of questions in relation to these principles. How far is the court willing to deviate from what would appear to be the plain meaning of the statute? How clear has Parliament made its intention? How much pull do the different constitutional principles exert when the court is weighing the extent to which it is acceptable or necessary to deviate from what we might think of as the plain meaning? And how are these different considerations to be reconciled? It's the fact that these things are brought into focus and tension with each other in ouster clause cases that often takes us so close to the constitutional bedrock when we think about these kinds of issues. Against that background, what did the Supreme Court have to say? It was confronted with two questions. In effect, what was the effect of vis ouster clause and secondly and more generally, is Parliament actually able to oust judicial review by means of ouster clause. It's a specific question and a general, even hypothetical question. On the particular question, Lord Carnworth who gave the judgments of three of the four majority judges so the leading judgements if you like, said that a decision that's initiated by an error of law, whether as to jurisdiction or otherwise, is no decision at all. So for Lord Carnworth, the addition of the extra words in this ouster clause, as compared to Anna Dminick, didn't cut any ice. He said that if Parliament had wanted to be clearer, it could have been. And the fact that it wasn't clearer meant that he was entitled to infer he hadn't really meant to exclude judicial review. He pointed for example to a 2003 bill which tried to oust judicial review by referring to purported determinations echoing the language of Anna Dminick that were visiated by a reason of lack of jurisdiction, error of law, or any other matter. He felt this was clearer and that in the absence of language of that degree of clarity he was entitled to draw the inference that he did. In assumption, one of the judges who dissented took a different approach. He said that the degree of elaboration called for in a strategy provision designed to achieve a given effect must depend on how anomalous that effect would be. And by anomalous here, he means anomalous in constitutional, in particular anomalous in rule of law terms. To what extent if we gave natural meaning to the provision would we end up with the results that place the rule of law in jeopardy? On a Lord's assumptions analysis the rule of law was not placed in serious jeopardy by an els to clause that prevented review in these sorts of circumstances because to begin with the IPT had a status and character as an independent judicial body that made it in the first place something that was there to protect the rule of law. What are these contrasting approaches tell us about the principle of legality, the principle of interpretation whereby fundamental constitutional values are protected? Certainly Lord's assumptions approach suggests that the potency of the principle of legality will turn to an extent on the extent to which the rule of law is threatened by the legislation in question. Would the rule of law be offended by the investigatory power tribunals immunity? The more we think it's offended by that kind of state of affairs the more the court will strain to find an interpretation of the provision that leaves judicial review at least to some extent in place. Now what about the broader question can Parliament oust judicial review at all? This was the elephant in the room in Anna's Menach but it wasn't the elephant in the room in privacy international, it was right there in front of the Supreme Court because they were asked this question explicitly. Not all of them agreed to engage with this but many of them did. The most striking statement we find in Lord Calmer's judgment he says it's ultimately for the courts not the legislature to determine the limits set by the rule of law to the power to exclude judicial review and in saying that he's echoing the kind of language that we see in the earlier House of Lords and Supreme Court judgments like Jackson and Exor so it's not unprecedented to see this kind of suggestion made from the apex cause bench. They want to press a little bit further on this point and to distinguish between two different ways in which this question can be looked at and in doing so I want to draw on a framing device that Lord Sumishon introduces in his judgment. Lord Sumishon draws a distinction between two different senses in which a limitation on Parliament's ability to exclude review might be rationalised in constitutional terms. The first approach is what we might call the radical or the normative view. This is the view that holds that Parliament is subject to a higher law as ascertained and applied by the court that that higher law prevents the ousting of review and that an else to clause is therefore not really valid law because it offends this higher law. So that's one way of looking at this. The second way is in a less radical way or a conceptual way. On this view says Lord Sumishon judicial review is necessary to sustain Parliamentary sovereignty flipping that's the other way around ousting judicial review is an affront to Parliamentary sovereignty. Why? Because if we are to have a meaningful system of law a system of rules that can genuinely and meaningfully be called a system of law then it's a necessary precondition that there exists a system of independent courts capable of interpreting and curating that body of law. Without that Parliament denies itself the ability to make that which can properly be called law. This has echoes and indeed there are explicit references to Lord Justice Law's judgment in court where he insists that judicial curation of the law or the insistence on judicial curation of law is not a denial of sovereignty but an affirmation of it. We see similar sentiments in Lord Reed's judgments in unison without access to justice he says Laws are liable to become a dead letter the work done by Parliament's rendered nugatory and the democratic election of members of Parliament may become a meaningless charade. So resistance to ouster clauses not as a limitation of sovereignty but as a realisation of Parliamentary sovereignty that's the lie of the land now what did the judges say about these two different views? Lord Sumption was very clear in rejecting the normative view Lord Sumption says that sovereignty applies as much to the court as to anyone else and that requires the court to give effect to Parliamentary legislation. Even Lord Carlowers I don't think unambiguously embraces the normative view he says that the courts are not addressing in this case the difficult question that might arise if Parliament were to pass legislation according to abrogates or derigate from accepted rule of law principles that's a slightly puzzling statement given that that is exactly what the second question raises but there we go so the normative view is rejected by Lord Sumption I don't think it's squarely adopted by Lord Carlowers but I'll suggest it when I finish in two minutes now that I think he actually does really come round to that view what about the conceptual view well Lord Sumption I think to an extent embraces it he says that if Parliament created body with limited powers it must have intended them to be effective and hence enforceable it could escape that conceptual difficulty by making plain its intention to create a body of unlimited jurisdiction there's a strong presumption against it doing so so in the vast majority of cases conceptual reasoning will justify judicial resistance to out the causes Lord Wilson embraces the conceptual view very clearly I think he says that if a true jurisdictional error is in play and Alison might say more about different senses of jurisdictional error then there's much to be said for recognising the conceptual impossibility of Alstom Lord Carnworth sort of aligns himself with that view but he says that he thinks that this would apply both to excess and abuse of jurisdiction so I think in one sense Lord Carnworth here is aligning himself with the conceptual view but in doing so I think he's presenting as what might call a normative wolf in conceptual clothing but in effect what Lord Carnworth is doing here is moving as well beyond judicial review in terms of the four corners of the power and he's saying that whenever any of the grounds of judicial review is made out thereby establishing an abuse of discretion this then triggers the kind of conceptual reasoning that enables us to resist the obstacles so finally where does this leave us is it telling us that there's a limitation of sovereignty or is it elaborating the meaning of parliamentary sovereignty I think that it turns on whether we favour and think that the court is favouring the conceptual or the normative analysis but Lord Carnworth judgement I think reminds us that that distinction is not watertight given that the notion of abuse of jurisdiction can be presented in conceptual terms but actually import what might be thought to be normative restrictions on what Parliament can do which of course then links in with the foundations with us thank you I'm afraid I don't have slides so you'll just have to listen to me what I want to do is to pick up where Mark Elliott left off and want us to think about some of the consequences we've looked a little bit about the consequences of parliamentary sovereignty but the two other areas I want us to explore a bit further one is thinking about the rule of law and the other is thinking about conceptions and justifications of judicial review so I'm going to look first at the rule of law and then move on to thinking about how we justify actions of judicial review and how it works so with regard to the rule of law there are two aspects that I want us to think about because I think there are two aspects of the rule of law on which you get disagreements across the justice of the Supreme Court so if there's one takeaway it's don't expect there to be one answer to any of these questions what you've got instead is a wide range of views across the different justices of the Supreme Court so when we're thinking about the rule of law we're often trying to think about it in terms of what is its content how far do we think it's formal and how far do we think it's substantive this case isn't going to help you on that but what it is going to do instead is to give you a different idea of the importance of the rule of law on the role it plays in the constitution and then from that an understanding about different consequences of its content and it's those I want us to think about so when we're thinking about the importance we've seen that in the way that Mark Elliott talked us through the case so you have this different understanding of what is the rule of law doing when we go away and think about its role in the UK constitution and we have this distinction that Lord Suction draws between a more radical view and a less radical view and you can see that running through the cases not just in terms of what they're thinking about whether they can and cannot be an ability to have ouster clauses writ large but also in the way in which they approach the more specific question what we do with this specific ouster clause here so if we go away and look at Lord Calmworth he's using the rule of law much more as a foundational constitutional principle so his starting point when he's thinking about whether you can have this particular ouster clause is to go away and think about what does the rule of law require and he thinks about it in terms of what pragmatic and principled restrictions will the rule of law place a particular ouster clause and that's his focus so the rule of law is being much more foundational we're using the rule of law to draw background constitutional principles to help us to think about what role ouster clauses should play in specific circumstances when you go away and look at Lord Suction's approach which is less radical the rule of law is playing a different role so the rule of law is a principle of the constitution but it isn't playing the same foundational role when you're going to go away and try and find out specific aspects of judicial review in these circumstances so we do have to think about the rule of law but it's tied into this background principles of parliamentary sovereignty so what is the rule of law there for it is about making sure we have governance according to the law it justifies the need to have courts to go away and carry out a form of review so if you were in a situation where you're completely removing all forms of judicial review you might have a different outcome because then you're not supporting parliamentary sovereignty but when you're looking at restricting judicial review in a very narrow set of circumstances over a particular court or tribunal then you might have a different outcome because you're going to spend more time looking at the legislation of what parliament empowered that tribunal to do and then the court's job is to go away and uphold it so you have a different focus what is the job of the investigative powers tribunal what does the legislation tell us about its role we then go away and look at its functions look at its role at taking its decisions special procedures of secrecy and then we go away and take a step back and say okay what did parliament want it to do on what would courts do to support parliament's will here so because it has these special secret procedures there still needs to be some control over it but these controls are very kind of distinct formal controls if they make a formal mistake as to the law but not if they get it substantively wrong because parliament has given it the powers to act here you need secrecy if you then go and have judicial review you would not have the same procedures and processes so it's a very different focus the rule of law is there to support how parliament is set out these provisions a very different role and that leads into a different content of the rule of law and that's one of the reasons of distinction between Lord Carmarth and Lord Subchan so when Mark Elliott was talking this through the case in the first instance you had this discussion of islands of law what on earth do you mean by an island of law on what we're trying to get out and what Lord Carmarth picks upon as well is when you go and look at the role of the IPT it is taking decisions in its own specialist area and it's going away and taking decisions on investigations of GCHQ is it justified by GCHQ for example and other intelligence services to go away and carry out phone tapping or computer tapping in certain circumstances that's its specialist jurisdiction but in doing so it's interpreting legislation when it goes away and interprets that legislation it will interpret this legislation in a way that applies within the sphere of the IPT but also because it's interpreting legislation that can apply it beyond that it is starting to make legal determinations that other courts might pick up on as well this can then cause a problem because if the IPT interprets a piece of legislation in a particular way it's got its own little island of law because other tribunals other courts might go away and interpret the same piece of legislation in a different way but if we do that we have problems because we're not really upholding the rule of law so we need a court to go away and check on the determinations of the IPT to stop this creation of little islands of law we only maintain the rule of law if we have the court checking these determinations because what if the IPT determines the meaning of a legal provision to go away and that's different from what other courts and tribunals are doing and it's that that pushes I think rule of calmness to a slightly different conclusion of what the rule of law requires he's thinking about it in a different way as a background constitutional principle he doesn't have the same role as thinking about it in terms of upholding the rule of parliament and he has this need in a sense to make sure we don't have these islands of law present in law assumptions judgments so those differences push them in different directions so that's getting us to think about the rule of law what about the foundations of judicial review what if anything is it telling us about these foundations of judicial review and this is where it gets a bit complicated so I'll try my best but you'll probably, if it's anything like any other lecture given you'll look at me going no I'm sorry I don't get it so I will try my best to explain what's going on when we think about foundations of judicial review we tend to think about it as some kind of battle between modified ultra-virus and common law and it's an over simplistic viewpoint there are lots of different versions of modified ultra-virus there are lots of different versions of common law and there are other specifications as well what I want us to think about is in terms of thinking about it when we raise issues to do with ouster clauses and when we raise issues with how we can remove judicial review and there's kind of two ways of looking at Anna's Minnick so we can look at Anna's Minnick and say what Anna's Minnick did was it told us that the reason this decision was a nullity and didn't exist it was only a pretending purported determination was because it was beyond the scope of its palace it had no jurisdiction and it's this distinction between jurisdictional and non-jurisdictional that grounds how judicial review works and then what Anna's Minnick told us, apparently or at least we are told that's what it told us when we read Anna's Minnick through to page is that all legal errors are jurisdictional errors so one way of looking of what's going on in Anna's Minnick is we have a distinction between on the one hand jurisdictional errors and non-jurisdictional errors we have these two boxes we find legal errors and we go into the jurisdictional error what's the end so what's grounding how it works is jurisdictional and non-jurisdictional another way of looking at Anna's Minnick is to say it started a shift away from seeing jurisdictional error and non-jurisdictional error as the grounding of how we think about these cases it wasn't the case that the decision was only purported in Anna's Minnick because it made a jurisdictional error the reason it was only purported was because it made a legal error and that's what's important that's what's really doing the work the distinction between legal errors and non-legal errors and we know that because that's how the case law moved it moved towards seeing legal, factual as the main distinction and we also know this because it ties into the rule of law to draw it back to what we were talking to earlier if you're going to make a legal error then you're acting beyond the scope of the powers because you've made a legal error you're acting beyond the rule of law so we see it more in terms of the idea that law, non-law is more important than jurisdictional, non-jurisdictional and you can read the cases both ways which is great fun for academics not so much fun for anyone else what if anything is this case telling us about that and the answer is they're disagreeing with each other so it's not going to give you a resolution but it helps you to understand why there might be this tension between these different approaches because if you go away and look at what Lord Carmworth is doing he's thinking much more in terms of background rule of law principles, approachiness from a principled basis and what seems to be pushing him is towards this understanding of it's law that is doing the work not jurisdictional non-jurisdictional so he starts by criticising this approach and he doesn't like overly technical distinctions and he keeps telling you it's all about drawing on background principles thinking about it pragmatically and principally what would the rule of law need here, how do I focus on this so for him this understanding of law is more important than jurisdictional non-jurisdictional if you go away and look at how Lord Sumption approaches the case it's different because for him when Lord Sumption looks at Anna's mimic he doesn't take a step back and say oh it's moved us to all legal errors of jurisdictional errors he says no Anna's mimic moves the distinction removes the distinction between an error of law on the face of the record and other errors of law on what it's doing and really what's going on in Anna's mimic is jurisdictional non-jurisdictional does the work and then we say these types of legal errors are jurisdictional so he thinks of it much more in terms of the scope of the power and we can see it's not just in the way in which they think about Anna's mimic but also the way in which they reason later on and how they draw on these principles particularly when we go back to how important parliamentary intention because if you are Lord Carmworth parliamentary intention is not unimportant but it's more like a break so you're going away and saying I've got background constitutional principles I'm going to reason in this way and if I've got clearly worded legislation that's going to get in the way then I might respect that or find a way of addiction of getting around it also if you're Lord Carmworth you have a general presumption at play when you're looking at the legislation there's a general presumption that parliament would not want to remove judicial review over either administrative bodies or inferior courts of tribunals and that presumption plays a lot of work and it's that presumption that pushes him to say it's just not clear enough here if you go away and look at Lord Sumption his approach is very different let's look at the legislation what is it telling us about the IPT what is its role, what are its powers have you set up an appeal system here that is playing a much more important role in working out how far we can go away and review decisions of the IPT so he's having much more emphasis on weight on background legislation much less emphasis on being pragmatic in principle in thinking through what the principles should be if you go away and look at Lord Lloyd Jones he's kind of middle he doesn't have a general presumption against judicial review being ousted over inferior courts and tribunals because they're different their tribunals they can uphold the will of law because they're performing a judicial function nevertheless the words were not clear enough here because he accepts a move from Anna's mimic to this idea that all legal errors of jurisdictional error and this wasn't made clear that legal errors were going to be removed this is where I compute everyone by saying that just because all legal errors of jurisdictional doesn't mean that all jurisdictional errors are legal that's essentially what they're drawing on there are factual errors and legal errors so we can interpret it in different ways so where does that leave us it leaves us just as confused as we were when trying to interpret Anna's mimic so my hope is hopefully it will take us less than 50 years to work this out but you never know thank you very much he thinks that the real distinction between the normative conceptual accounts is on because it seems to me that if you're thinking about legal principles as you said you have to work out how these principles operate together you're both the normative and conceptual work at the same time but I find it hard to see what conceptual analysis could mean in this context that there is a problem of normative grappling with rather than principles that are the environment but if that's right then what law of assumption says about where the conceptual but not the normative may just be windowed because he doesn't want to concede that absolute sovereignty is rather less straightforward he wants to leave openly conceptual possibility that Parliament could create some tribune with unlimited jurisdiction no respect since whatever but then he says what's that to be very strange that Parliament wants to do that's another way of saying we never need to read the staff in that way it will be wrong if it comes from the law it will be a stuff not found by law so I wonder whether he can really rest on that distinction through a normative and the conceptual if I'm right and it's really the same thing then he's on stating it on the slippery and the slippery side of what you've done I think that I agree with the premise of the question at least because I think that when you start to dig into Lord Carnworth's judgments so I do find it difficult so if we were to accept which you don't if we were to accept that there is the conceptual normative way of looking at things I find it difficult to pinch in the hole Lord Carnworth because I think he says conflicting things if we stay within that paradigm we accept the paradigm that may in itself be telling I suppose but I think that when we start to dig further into Lord Carnworth's judgment we do start to see the wheels come off this idea of a distinction between the purely conceptual if you like and then the normative because I think at one point I think he is trying to present his way of looking at things in conceptual terms but I think as I said in my talk I think as soon as he builds in the notion of abuse of power we start to think well doesn't that bring into play limitations that are beyond the merely conceptual and when I said at the end of my talk that it links into the foundation what I had in mind there is that I suppose you could say not that there are any of these people in the room but if you are any kind of ultra virus theorist you might say well of course all of these substantive norms that may condition the exercise of power can nevertheless be understood in the final analysis as conceptual limitations that flow from the scope of the power then I suppose you can allow him to square that circle but that in itself is perhaps I think it depends where you stand on that issue but I can see that if you don't buy into that way of looking at things then I see it problematic to think of any clean distinction between the conceptual and the normative but the question did agree I think that maybe not time If I'm looking at the classification of Lord Karm's argument I agree with Mark that it looks conceptual and slides into normative we're going to try and explain to you what I think our Lord's assumption and what I was getting at about this conceptual distinction and I also think that what Lord's assumption is really doing is that it's a practical rather than conceptual so I would have Lord Wilson as conceptual Lord Karm is really normative and Lord's assumption is practical so the conceptual is because you're faced with a possible contradiction so if we're thinking about it conceptually Parliament is trying to create a tribunal with limited jurisdiction so if it then removes judicial review from that body then essentially what you're saying is I don't have to check you so because nobody checks you in essence it's a bit like saying you can decide for yourself what your jurisdiction is so that becomes a conceptual problem so that I was trying to explain it in the lecture today I was imagining parents saying to a child I'm going to set a curfew for you so the parent is in charge and says you have a curfew teenage daughter but then the parent says you can set the curfew yourself for whatever time you want but I haven't really set a curfew for my daughter any more I've essentially said you don't have a curfew because you can decide what your curfew is it's exactly the same here and that's what I think is coming close by conceptual how can you be limited but determine the scope of your limits at the same time you can't decide what your jurisdiction is so it's got to be one or the other and that I think is a conceptual limit which I think is where Lord Wilson is going what I think Lord Sumption is trying to say is take it as a principle of interpretation practically these are going to contradict each other now surely practically Parliament is not going to do that you're going to spot that so practically you're not going to see it but also practically if I can see that contradiction I'm going to go away and look at the legislation and work out what I think Parliament wanted did Parliament really want to create a body that could determine the scope of its own jurisdiction or did Parliament really want that to be limited and I will know that when I look at the legislation see what powers were given to that body and see what else is there like there was meant to be a possible appeal system but they haven't got around to setting up yet all that would be important to be to work out which of these contradictory interpretations was actually the real one so that's how I would see it I don't know whether you would accept that as a conceptual normative distinction but I do agree with Mark that I think Parliament is really being normative not conceptual I'd like to find a question very interesting but can we have a question to give your answer so I can understand who's like come on let's have some questions interesting and difficult issues don't worry about it you think it's simple that's good there's a good judgment there's a good strange position where it does too much but not enough because for example it's a broad approach to how the section is given as an outcome but if for example the identity that's run under the scheme is relevant beside of that the heterostriction would be a relevant matter now that you have it by the text okay so you imagine let's say the IPT decided it was going to judicial review my decision to set you a 25,000 word essay for tomorrow okay right so completely beyond the scope of I'm not doing completely beyond the scope of his powers if you would then to kind of plug that into the different reasoning processes the difficulty is how far by the ouster clause work so if you look at Lord Wilson he seems to be suggesting that that just wouldn't work because you couldn't ouster review for these pure jurisdiction issues the things like why was the IPT reviewing the decisions of a lecturer rather than reviewing what was going on the security services so that's where he would go if you look at the way in which you've got this competing interpretation on this you'd go away and say well this is excess and abuse and it's a legal error because you've legally misunderstood the scope of your powers so that's not going to oust it either you've made a legal mistake when interpreting the law setting out what your powers is and he would go down that route if you're looking at the Lord assumption if you look at his specific why of interpreting section 7 it's this idea of a kind of procedural mistake so the example he gives us was the decision final when the decision had been determined by the court but not lodged and they thought it was final so actually no it wasn't because it hadn't been lodged it's that kind of mistake and it wouldn't extend to this unless you could put to some kind of procedural error they made rather than the substance of their powers and then he'd have to go down the legislation and say what was really intended here did you want the IPT to review tutors or did you not so I can go away and tell you that's not on the scope of your powers I think that's where he'd go but it's not helping in some senses because it's so specific it's so broad at the same time it's really hard to pin down how it would apply to different causes it's going to work very well I'm just going to go I'm just going to listen to the question now let's not be upset that your collo was quite correct in the order to be taken as we were born despite types of blur but that seems compelling but why is consumption not really normal for it because it just seems that one could interpret more consumption in what he's actually doing is just starting with a different set of presumptions and he's not thinking quite how he would say something like it's unlikely that target would be something so he started with a different presumption and that's his own presumption so it's all normal work that both of them are sort of trying to probe that as though it's some sort of principle on how to do this or is it all our principles which they perfectly match with you so why is that? I think it's important to recognise where Professor Valin's question really was coming from so are they both doing normative things or are they both working in some kind of abstract bubble in which normative principles never intrude? Well of course they've got different background constitutional principles driven by different normative conceptions of what they think is the proper role of the court so Mark Elliott when he set out the principles they all have different understandings of what do they mean by parliamentary sovereignty, what do they mean by will of law, what do they mean by separation of powers and they will be driven by different normative conceptions of those principles of course but what we were looking at was when you are trying to classify is it the case that there is some kind of obstacles Parliament just could not do that's where the split is and yes that's based by different background normative considerations but that is then driving them to either come up with a normative restriction on Parliament based on these background principles or a conceptual one because if you put more weight on parliamentary sovereignty it's going to be much harder for you to then say on the background principles of the rule of law stop you doing this, so yes different normative principles push in those different directions but the nature of their limit is either conceptual or normative still for different reasons I think just to add to that briefly on the conceptual normative point one way of thinking about it might be to say to clearly well Professor Allen might want to come back on this and disagree but I would say this is to clearly contrast the examples so on the one hand we might say we might accept the view that a sovereign Parliament cannot bind its successes on the other hand they might be a suggestion that Parliament cannot enact legislation that reaches the fundamental right to freedom of expression they would seem to me to be two different kinds of limits on parliamentary authority what one is explicitly normative but the first one I would think of as conceptual because it is something that flows from the very conceptual nature or it flows from one understanding of the very conceptual nature of what it means for a legislature to have sovereign or unlimited authority and then I think what this case is putting into focus is the question well okay if it's the case that Parliament can't oust or if it's the case to some extent Parliament can't oust judicial review can we categorise it as one or other of those things is it more like the restriction that says a sovereign Parliament can't bind its successes or is it more like the restriction which says Parliament cannot pass legislation that restricts certain fundamental human rights and so to me that's what this distinction about conceptual versus normative is about and I think you can see from the judgments that it's actually quite difficult to map the oust or clause question on to that distinction. Maybe I'll stick up a film and say it but you all think about it in a very static way as if Parliament doesn't come back so if Parliament doesn't come back because there are some times set up to deal with this kind of matter to review the decisions of the electorate to say yes I think it starts hearing a talk case that surely Parliament will change and is the clause to say Parliament should be called to say that's your business that you've changed I should say this is not the law now I didn't point that out that in Parliament's judgment starts with a re-book error it says section 67.8 provides and then it reads out what it uses before that the legislation of the world has moved on there is now an appeal and if you look at Parliament's dates about 2065 everyone was assuming that that was going to be but I think that the the Chancellor was very proud to say we have provided for him so it was a big question to do that that cuts both ways isn't it because I'm genuinely comfortable with what bits of this judgment if you wanted to press the point you could say well didn't Parliament do precisely that you had anismhenic and you had the foreign compensation act which talked about court not interfering with determinations because the Parliament retaliates and it says okay well now not determinations including determinations as to jurisdiction I don't actually think that anybody can be in any doubt what was in the Parliamentary Draftsman's mind when those words were used and as Minnick was in his or her mind and this elsa clause was brefted it seems to me specifically to address the judgment of the House of Lords in Anna's Minnick in terms of the dynamics it would seem to me that clearly points towards the majority view in privacy international being on that sort of analysis problematic sorry sorry can I just take that on behind the camera so were you just discussing about the sort of issue that it does seem very clear that so does that come a point in the statutory construction in which the courts would have to make a decision to sort of go to the mind and say okay we're going to strike down this law or sort of find a trigger on this sort of mutual issue of destruction hopefully continue to move on separately or are we sort of in this scenario a law courts will entertain increasingly ludicrous things so that they maintain the status quo and at what point do we move on to the other do you want to stop thank you for that good question I think one example is so when Mark was setting out the context you had the infamous immigration bill which was trying to oust absolutely everything by listing all sorts of things that were reported and legal errors and other things did do a complete job of removing judicial review on that particular area so I think we have to kind of distinguish between two possible scenarios so if you look at the kind of AXA Jackson scenario that is a scenario where pond has come along and said you know those courts you know those kind of judicial review things they do we just got rid of them so this is kind of like abrogating everything so that's the suggestion that if you did something that completely removed judicial review totally then yes that's when you'll stop reaching for the nuclear button and say that it's just something you can't do that's something you're not going to recognise I'm not quite sure how this works but this is the idea that that kind of extreme scenario there's exceptional circumstances and they tie into undermining the foundations on what the constitution is based and often tie into suggesting that this was a complete abrogation of how democratic processes are meant to work so you've got that extreme circumstance the question is what you do with all these different things in between what if you have a clause that does it's better remove every single form of judicial review or that does this that sort of looks as though it's trying to get rid of judicial review by picking up on Anna's mimic putting in the special magic words and hoping this means you can ask judicial review and along comes the court saying that special magic words didn't work because actually they're not the right special magic words off you go again and find the new special magic words that will go away and remove judicial review will be circumvented I think the way to think about it is when you're dealing with the special magic words scenario you can have this element of dynamic interactions you go away, you pass a clause the courts go away, interpret it Parliament can respond that they can keep going round I think in those circumstances courts should keep interpreting but be aware of the fact that they are interpreting and there could be a possible limit but Parliament can come back if it gets to the complete nuclear destruction scenario I think you are thinking about the exceptional circumstances where democracies disappeared judicial review and the entire courts are trying to be removed the courts come on and say no I'm sorry I don't think in these extreme circumstances we're going to recognise that as law and that's the clearest I can do to come with a distinction but it's a vague line All I would add and I'm conscious that there's a lecture in here I think at 6 o'clock so maybe we have to finish now but all I would add I think is that the judges admit that they know what they're doing sometimes so Lord Phillips I think it was I think it was Lord Phillips shortly after he retired was giving evidence to a Parliamentary committee and he referred to cases like Anasminic and he said sometimes courts will ascribe to legislation a meaning that they know it cannot bear and they do this in effect as an act of political dialogue as much as anything else it's sort of it's saying to Parliament sorry to Parliament get back into your court now you deal with this it's what we're saying we think it means even though we don't really think it means this now you decide what you want to to do with it so I do think that it forms part of that beckon force that we can't actually we try to understand it purely in terms of a legal analysis rather than a broader sort of small peen political analysis or an institution analysis we miss some of what's going on but I think that's how it's made not only for not only for Parliament it's a Parliament where it makes it typically doesn't do that with respect it doesn't give a benefit to a few people and then of course it's like that but I think in terms of to a staff that's more of a reasonable function this is about staff with that vision but not one of the seven actually adopting anything that is strong a claim to that and finally this comes in for what we want and how to say it it isn't correct like this on a claim in the court but in terms of the legislation that was used by the coalition drafts and was sufficient to reverse that the audience is limited to the decision as to whether they have jurisdiction as to whether the tribunal has to eviction not as to whether the person of the tribunal has jurisdiction and so in real question here it was made before the tribunal and the question as to whether the policy is quite clear but that raised the question of why the majority didn't simply say it too many questions anyway thank you very much can we thank those people