Richard Ekins

Do our Supreme Court judges have too much power?

In our tradition, courts do not and should not stand in judgment over parliament. It is for parliament, in conversation with the people, to choose what the law should be and the duty of courts is to uphold those choices. In the years before the UK decided to leave the EU, some judges reasoned that the constitution had evolved to the point where parliamentary sovereignty was redundant. They suggested it was time for judges to assert a power to quash laws they thought were unjust or unprincipled. Their view was always legal nonsense, and it is very unlikely that a British court will attempt to strike down a statute anytime soon. However, even if our judges are, thankfully, less mighty than their North American or continental European counterparts, the expansion and misuse of judicial power still puts the balance of the constitution in doubt. Two cases to be decided by the Supreme Court later today illustrate the problem. The first, R (Privacy International) v Investigatory Powers Tribunal, concerns a challenge to an ouster clause, which protects the decisions of a public body from being quashed by way of judicial review. The case began when the charity Privacy International complained to the Investigatory Powers Tribunal (IPT) – a judicial body which considers complaints against the intelligence agencies – that GCHQ had undertaken unlawful computer hacking. Privacy International later commenced judicial review proceedings to challenge the IPT’s decision about its complaint. The Divisional Court ruled that Section 67(8) of the Regulation of Investigatory Powers Act 2000 (RIPA) was a bar to the proceedings, and the Court of Appeal agreed. This might seem an easy case. The IPT has made a decision, Privacy International is seeking to question that decision in court, by way of judicial review proceedings, and the statute says that this cannot happen. However, there is a strong risk that the Supreme Court will today render the ouster clause irrelevant in practice.

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