Clause 45 of Internal Market Bill: a striking attempt to exclude judicial review

In this post, Jack Williams of Monckton Chambers explores the Government’s attempts via Clause 45 of the Internal Market Bill to exclude judicial review of Ministerial Regulations made under the Bill in relation to exit procedures and the state aid provisions in Article 10 of the Northern Ireland Protocol.

As Mark Elliott has noted, the Internal Market Bill contains multiple sticks of “constitutional dynamite”. One of these is found in Clause 45 of the Bill. That provision attempts to exclude judicial review of Ministerial Regulations made under the Bill in relation to exit procedures (Clause 42) and the state aid provisions in Article 10 of the Northern Ireland Protocol (Clause 43). First, it states that these Regulations “have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent” (45(1)). Second, for good measure it states that “[a]ccordingly… any other provision or rule of domestic law that is relevant international or domestic law ceases to have effect so far and for as long as it is incompatible or inconsistent with” any such Regulation (45(2)(d)).

Importantly, “relevant international or domestic law” is defined so broadly as to include not only any international agreement relevant to EU Relations Law, but also “any other legislation, convention or rule of international or domestic law whatsoever, including any order, judgment or decision of the European Court or of any other court or tribunal” (emphasis added).

This is, to say the least, unusual. In similarly understated terms, Mark Elliott calls it “striking”. This is so because it is orthodox that delegated legislation is subject to judicial review on the normal grounds of review (including whether it is beyond the powers of the parent Act, procedural fairness, illegality (such as being made for improper purposes or taking into account irrelevant considerations), rationality, and proportionality). But Clause 45 appears on its face to exclude judicial review of the Regulations on these normal domestic law or Human Rights Act grounds.

If enacted, the question becomes how successful this attempt to oust judicial review will be. That depends on two enquires. First, whether a Court will ‘read down’ the (then) section by utilising constitutional modes of interpretation to effectively confine or undermine altogether this apparent Governmental intention. This is what might be called the “Anisminic” approach. Second, whether – in circumstances where a Court felt unable to interpret the (then) section in a constitutionally-compatible fashion – the Courts will strike down, disapply, or refuse to enforce the (then) section. This is what might be called the “Jackson” approach. I discuss each in turn.

The Anisminic approach: wishing (interpreting) the problem away

Mark Elliott summarises this approach well:

“It might, for instance, be argued (in line with the Anisminic case) that saying, as clause 45 does, that regulations ‘made under’ clause 42 or 43 have effect notwithstanding incompatibility with any rule of domestic law is insufficient to oust judicial review because clauses 42 and 43 should not, in the first place, be read as authorising regulations that breach judicial review principles — meaning that regulations that do breach those principles are not ‘made under’ the relevant clauses.”

In short, the Courts narrowly construe statutory provisions which on their face provide for the ousting of judicial review. Critics may fairly comment that the Courts have shown great creativity in doing so. Proponents would say that this upholds the rule of law and the separation of powers in a liberal democracy: without the clearest of express words, Parliament should not readily be presumed to oust a constitutional right to access to the Courts. (Jurisprudes may consider this aspect – closely associated with the modified ultra vires basis for judicial review – as a practical application of soft positivism.) Moreover, the Courts might be viewed as protecting Parliament itself: it should not be readily presumed to allow administrative actors to essentially act beyond their powers (granted by Parliament in the first place).

Whatever the merits, the upshot is that Parliament is, at the very least, required to use crystal clear words if it is to achieve the result of ousting review altogether (assuming, as discussed below, the Courts will allow total ouster at all).

The best example of this interpretative principle in action is Anisminic [1969] 2 AC 147 (hence my labelling). There the Court considered a purported ouster clause in the relevant Act providing that: “determination by the commission of any application made to them under this Act shall not be called in question in any court of law”. The Court interpreted the section narrowly, holding that Parliament did not intend (and this section did not manage) to allow the decision maker to make a jurisdictional error of law – in that situation, the determination is a nullity such that there is no valid determination in the first place. Thus, the ouster clause did not bite. Judicial review was permissible.

By analogy, therefore, the argument vis-à-vis Clause 45 would, in essence, be that the wording in Clause 45 is not clear enough; it leaves enough room for manoeuvre for a Court to interpret, or ‘read down’, the (then) section to avoid any exclusion of judicial oversight of the unlawful making of Regulations. Parliament did not intend to authorise the making of, or to shield from review, Regulations that would contravene the traditional grounds of review. Only “valid” regulations that are made under (then) sections 42 and 43 are immune from subsequent review. On this approach, in order to have had a total exclusionary effect, Clauses 42, 43 or 45 would need to be clearer by, for example, stating expressly that the regulation-making powers include the power to make regulations in breach of judicial review principles. On this approach the “have effect” wording in Clause 45 presupposes a valid Regulation and is not clear enough to oust review of the existence of a (valid) Regulation. At least some (legality most obviously) grounds of review are not ousted, if not all.

In one sense, this Anisminic approach is even stronger in the present context because of another intertwined constitutional interpretative principle, namely that the Courts will construe Henry VIII powers narrowly (see The Public Law Project [2016] UKSC 39). Clauses 42 and 43 are striking examples of Henry VIII powers (i.e. they allow for delegated legislation to amend primary legislation). In fact, they are so broad that “Charles I powers” may be more appropriate a description: first, they allow the Regulations to include provision for “rights, powers, liabilities, obligations, restrictions, remedies and procedures that would otherwise apply in relation to aid, as a result of relevant international or domestic law, not to be recognised, available, enforced, allowed or followed” (Clauses 42(5) and 43(3)(e)) and, second, such Regulations “have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent”.

Moreover, Courts apply a number of other, well-established approaches to statutory interpretation (often expressed in Latin maxims). One of these is the maxim “ejusdem generis”. Under this approach, where a general word follows particular and specific words of the same nature, the general word is presumed to be restricted to the same genus (category) as those preceding specific words. An example is that a Court may interpret “any other animal” in the phrase “dogs, cats and any other animal” as only including domestic pets (depending on legislative context). As stated above, “relevant international or domestic law” is defined in Clause 45(4) very widely to include, as a catch all in the last sub-clause (g), “any other…domestic law whatsoever”. That, however, follows a specific list, (a) – (f), including the Northern Ireland Protocol, the Withdrawal Agreement, other EU law, the European Communities Act 1972, European Union (Withdrawal) Act 2018, and retained EU law. This has a common strand – law connected with European matters. It is thus arguable that the “any other…domestic law…or [judgment] of any other court or tribunal” is limited in scope to EU-related matters. On this reading, there would be no ouster of normal, domestic judicial review principles in the first place. No issue would arise.

Taken together, these are strong arguments that suggest that Clause 45 is vulnerable to an Anisminic-style interpretation, enabling the Courts to avoid any ouster of review on normal grounds for judicial review. However, this is not beyond the scope of argument. The Internal Market Bill (if enacted in its present form and challenged in Court) would certainly stress-test how far the Anisminic approach can be applied, for example. This is for two reasons.

First, it is possible to argue that the Anisminic analogy does not apply. In that case, the Court was considering a determination of a statutorily-created commission. In that context it is easier to distinguish between, on the one hand, the making or existence of a valid decision (i.e. the commission’s jurisdiction to reach determinations which would be amenable to review in order to determine that validity) and, on the other hand, the prohibited exercise of reviewing a (validly-made) decision which does exist (which would not be amenable to review). Here, on the other hand, it is at least arguable that the situation is different. On this view, Parliament has in one breath created a power to enact Regulations and set out seemingly-endless (Henry VIII/Charles I) parameters. There is no room, on this view, for the reasoning in Anisminic to apply: by breaching judicial review principles, the Minister would not be stepping outside its jurisdiction or powers granted by Parliament like the commission in Anisminic. This would mean that the Minister, unlike the commission in Anisminic, has made no jurisdictional error. Accordingly, the Regulation is not, in that sense, a nullity. On this view, therefore, any distinction such as that utilised in Anisminic between creation and exercise is, in truth, in this context a false one and inapplicable.

Second, it is possible to argue that the Anisminic approach is satisfied (assuming it applies). On this view, the language used is express enough to meet the conditions set out in the case law. There is, then, no room for interpretative manoeuvre. This, so it would be argued, follows on the basis of the wording in Clause 45 that such Regulations “have effect notwithstanding any … domestic law with which they may be incompatible or inconsistent” and the wide definition of “relevant … domestic law” to include “any…domestic law whatsoever”. The question for the Court is how clear enough this is. On one view, this goes further than the wording used by Parliament in Anisminic, because it states that the Regulations “have effect” (i.e. “are valid” on this interpretation) even if they are contrary to other domestic law; this is more expressly endorsing their vires as opposed to leaving any room for debate about what determinations, or Regulations in this case, exist and those that Parliament intended to oust from the Courts’ review at the outset.

The Jackson approach: lighting the dynamite 

The Anisminic-approach likely provides the solution. Nevertheless, assuming for argument’s sake only that the Anisminic approach fails (i.e. a Court could not find any other way of interpreting the (then) section other than as a total exclusion of judicial review), that is not the end of the matter. A Court could decide to opt for the nuclear option of lighting the dynamite. That approach would be to strike down, disapply, or refuse to enforce the section on the basis that Parliament simply cannot oust judicial review entirely.

That would be an unprecedented outcome and contrary to most orthodox understandings of Parliamentary sovereignty. But it would not be entirely without jurisprudential support. As is well known, there is obiter dicta in Jackson [2006] 1 AC 262 that Parliament is not competent to legislate contrary to the rule of law and, in such circumstances, the Courts might strike down any particularly egregious legislation. Dicta in Privacy International [2019] UKSC 22 also support the contention that there may be some situations in which a Court might find that the complete ousting of judicial review is unlawful. Whether the Internal Market Bill has this effect is contestable. It is likely that the Courts would prefer to interpret it otherwise to avoid initiating any reserve Jackson powers.  

It is to be sincerely hoped, though, that the Courts will not be placed in a position where they have to consider whether to deploy the full panoply of the constitutional armoury in any event. Despite the interpretation and effect of a statutory provision being legal questions suitable for legal resolution, one can imagine how the involvement of the Courts may well place them under an unwelcome political spotlight. This is particularly so in light of the current consultation on judicial review and the political hype surrounding the EU withdrawal process. Hopefully sense will prevail in Parliament during the passage of the Bill in order to limit more clearly the scope of the striking powers in Clauses 42 and 43 and the scope of the exclusion in Clause 45.

I am grateful to Professor Mark Elliott of the University of Cambridge (St Catharine’s College) for comments on an earlier draft of this blog post.

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