Through the Looking-Glass? Ouster Clauses, Statutory Interpretation and the British Constitution

Abstract

This purpose of this paper is to examine the way in which courts in the UK interpret both ouster clauses and other provisions that may appear to inhibit or preclude the performance of the judicial, including the interpretive, function. Examining such questions supplies a valuable opportunity to consider how the UK's uncodified constitutional system works, and how judicial understandings of that system - and of the curial role within it - have developed over time. In this way, it becomes possible to understand why older decisions in which legislative ouster was met with judicial equanimity seem so archaic when viewed through a contemporary lens. Ultimately, the question arises whether judicial construction of ouster clauses in the UK is so strained as to amount, in substance, to something more than just interpretation - a question that implicates fundamental issues about the veracity of the principle of parliamentary sovereignty. It is argued, however, that the case law - and the broader set of institutional interactions of which it forms a part - does not provide any definitive answer to such questions, and that the imperative of avoiding constitutional crisis renders such uncertainty a good rather than a bad thing.

Keywords: judicial review, constitutional law, administrative law, ouster clauses, rule of law, separation of powers, sovereignty of parliament

JEL Classification: K00, K1, K10, K19, K2, K20, K23, K29, K3, K30, K39, K4, K40, K49