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

Chris Hunt, Lorne Neudorf and Micah Rankin (eds), Legislating Statutory Interpretation: Perspectives from the Common Law World (Carswell, 2018)

University of Cambridge Faculty of Law Research Paper No. 4/2018

22 Pages Posted: 10 Jan 2018

See all articles by Mark Elliott

Mark Elliott

University of Cambridge - Faculty of Law

Date Written: January 5, 2018

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

Suggested Citation

Elliott, Mark C., Through the Looking-Glass? Ouster Clauses, Statutory Interpretation and the British Constitution (January 5, 2018). Chris Hunt, Lorne Neudorf and Micah Rankin (eds), Legislating Statutory Interpretation: Perspectives from the Common Law World (Carswell, 2018) ; University of Cambridge Faculty of Law Research Paper No. 4/2018. Available at SSRN: https://ssrn.com/abstract=3097074 or http://dx.doi.org/10.2139/ssrn.3097074

Mark C. Elliott (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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